UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LBRARY 


I 


s 


THE 

COMMITTING    MAGISTRATE, 

A 

TREATISE 


The  Arrest,  Examination,  Bailing,  and  Commitment  of 
Offenders,  including  Fugitives  from  Justice, 

WITH   THE 

REMEDIAL   FEATURES  OF   THE  WRITS   OF   HABEAS  CORPUS, 
CERTIORARI,   MANDAMUS,    AND   PROHIBITION, 


Charles  a.  Flammer. 

One   of  the    Police  Justices   of  the   City  oT   New  York. 


N  E  \V    ^'  O  R  K  : 

MARTIN      B  .     BROWN,     P  R  T  N  F  E  R 

Nos.  49  AND  51  Park  Place. 

1881. 


T 


Entered  According  to  Act  ok  Congress,  in  the  Year  i88i,  by 

CHARLES  A.    FLAMMER, 

IN  THE  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


35  Co  idCs 


TO    THE    HONORABLE 


DORMAN    B.    EATON, 


WHO,  BESIDES  ATTAINING  HIGH   DISTINCTION   ATTHE  BAR, 


HAS    BEEN    A    CONSPICUOUS    LABORER 


IN    THE    CAUSE    OF    CIVIL    SERVICE    REFORM,     AND 


TOWARDS    SECURING 


A     BETTER     ADMINISTRATION      OF     GOVERNMENT      IN      THE 


CITY    OF    NEW     YORK,    THIS    WORK    IS 


Respectfully  Dedicated; 


PREFACE. 


Most  criminal  works  coiitjiiii  information  respecting  the 
subjects  treated  of  herein,  but  of  a  limited  character,  and 
usually  scattered  tlirougli  the  books. 

This  condition  of  affairs  induced  me  to  undertake  to 
collect  from  such  works  the  material  they,  and  such 
other  sources  as  might  suggest  themselves  to  me,  would 
furnish,  and  mould  the  whole  with  such  matter  as  I  might 
appropriately  contribute,  into  a  volume  sufficiently  exten- 
sive to  enable  the  reader  to  gather  from  it  a  comprehen- 
sive and  fundamental  knowledge  of  the  law  and  practice 
under  the  title  of  this  work. 

The  greater  part  of  this  book  was  written  before 
the  adoption  of  the  recent  New  York  Code  of  Criminal 
Procedure,    which    necessitated    material    alterations    and 

additions. 

C.  A.  F. 

New  York,  October  27,  1881. 


CONTENTS. 


PAGE 

Introduction ix 

Part         I.  — Lodging  the  complaint 1 

Part       II.  — Examination  before  warrant 34 

Part     III.— The  Warrant 54 

Part  IV. — History  of  the  examination  after  arrest.  The  examina- 
tion as  evidence  in  the  trial,  and  the  detention  of  the 
accused  pending  the  hearing ISl 

Part       V.  —  Order   and   manner  of   proceeding  on  examination  after 

arrest 101 

Part     "VI.  ^Holding  to  answer  (probable  cause) 125 

Part    VII.— Bail 135 

Part  VIII. — Commitment 1*>1 

Part      IX. — Fugitives  from  justice 168 

Part  X.— Writs  of  Habeas  Corpus,  Certiorari,  -Mandamus  and  Pro- 
hibition     181 


INTRODUCTION, 


The  cases  coming  to  tlie  notice  of  the  criminal  magistrate 
may  be  diyided  into  three  chisses  :  snmmarr  convictions, 
misdemeanors,  and  felonies.  The  most  prominent  offenses 
falling  under  the  fii-st  category  are  intoxication,  disorderly 
conduct,  disorderly  persons,  ragi-ancy,  bastardy,  and  sundry 
minor  violations  of  corj)oration  and  sanitary  ordinances, 
and  are  denominated  summary  because  the  accused  per- 
sons have  their  ti-ial  immediately,  whereas  when  charges 
belonging  to  the  other  categories,  /.  e.  misdemeanoi-s  and 
felonies,  are  made,  an  examinoiion  is  had  prior  to  the  tiial. 
We  shall  confine  oui-  attention  herein  to  the  cases  wherein 
an  examination  takes  place,  and  in  which  there  mav  follow  a 
holding  to  answer  before  another  tribunal,  or  to  await  action 
by  a  Grand  Jury — to  that  branch  of  the  duties  of  a 
magistrate  which  relates  to  the  commitment  of  offenders 
for  future  disposition  elsewhere. 

Further,  since  it  is  the  purpose  of  this  work  to  consider 
only  such  powers  and  duties  as  concern  the  magistrate  or 
those  acting  under  him  or  by  his  direction,  arrests  made 
without  a  warrant  will  not  be  considered.  A  studv  of  the 
numerous  treatises  on  Criminal  Law  extant  will  enable  the 
reader  to  gather  the  law  as  to  arrests  without  a  warrant, 
either  by  an  officer  or  by  a  jsrirate  person.  It  will  be 
found  from  them  generally — 

1st.  That  an  arrest  may  be  made  without  process  bv  an 
officer  for  any  criminal  offense  committed  or  threatened 
within  his  view : 


X  INTllODUOTION. 

2d.  By  an  officer  ivithout  process  on  information  bearing 
the  impress  of  truth,  that  -a.  felony  has  been  committed,  or 
that  a  breach  of  the  peace  is  imminent ;  or 

3d.  By  a  private  person  when  a  felony  has  in  fact  been 
committed."^' 

A  considerable  part  of  the  contents  of  this  volume  is 
based  on  the  New  York  statutory  provisions  bearing  on  the 
arrest  and  examination  of  ofltenders,  including  the  recent 
Code  of  Criminal  Procedure,  referred  to  herein  for  brevity's 
sake  simply  as  the  "  Code,"  but  such  portions  are  applica- 
ble or  adjustable  to  the  other  States,  with  some  modifica- 
tions, that  can  readily  be  made  with  the  aid  of  their 
statutes. 

It  Avas  said  by  a  celebrated  historian!-  that  "  in  no  part 
of  history  can  any  event  be  truly  understood  without  refer- 
ence to  the  events  which  went  before  it  and  which  prepared 
the  way  for  it."  This  observation  has  special  applicability 
to  the  law,  seldom  of  an  isolated  or  exclusive  character,  but 
peculiarly  dependent  on  preceding  enactments  or  customs 
for  a  correct  interpretation  and  thorough  mastering  of  its 
scope.  The  judicial  system  is  a  growth  which  requires  for 
its  comprehension  not  alone  an  examination  of  that  part 
exposed  to  view,  but  also  a  study  of  the  roots,  the  seed  and 
even  the  soils  from  which  it  issued.  These  conceptions 
induced  a  somewhat  extended  treatment  of  various  heads 
contained  in  this  work. 

It  was  many  centuries  before  there  was  developed,  in 
obedience  to  a  diffused  intelligence  to  be  ascribed  to  that 
great  civilizer,  the  art  of  printing,  a  hearing  partaking  of 
the  essence  of  what  is  known  to  us  as  a  legal  trial  free 
from  the  dictation  of  a  superstition  Avhich  pervaded  every- 
thing, and  during  this  period  of  gestation  the  proceedings 
commonly  surrounding  the  trial  of  the  present  day  were 
unknown. 


--  See  New  York  Criminal  Code,  pp.  50-54  (L.  1881). 

+  Freeman's  History  of  the  Norraan  Conquest  of  England,  vol.  1,  p.  2. 


INTRODUCTION.  XI 

Wliatever  preceding  or  subsequent  steps  are  now 
necessary  or  may  be  resorted  to,  were  devised  after 
the  main  hearing  reached  that  state  of  advancement  which 
suggested  those  accompanying  measures  now  regarded  as 
indispensable.  The  hearing  preliminary  to  the  trial, 
through  which  the  defendant  on  establishing  his  innocence 
could  be  discharged,  now  provided  for  in  all  civilized  coun- 
tries, is  the  creation  of  quite  modern  times. 

In  order  to  comprehend  the  nature  of  an  examination  it 
is  quite  as  important  to  consider  the  legal  procedure,  when 
it  was  not  in  existence,  as  to  follow  the  history  of  its 
growth. 

It  will  therefore  be  attempted,  prior  to  presenting  exist- 
ing recognized  proceedings,  to  touch  on  anterior  conditions 
out  of  which  present  forms  were  evolved. 


LODGING    THE    COMPLAINT. 


Chapter  I.  The  Origin  of  Public  Prosecutions. 

II.  The  Comphiinant. 

III.  Where  Complaint  to  be  made, 

IV.  To  whom  to  apply  for  Warrant. 

V.  The  Complaint. 


CHAPTER  I. 

ORIGIN    OF   PUBLIC    PROSECUTIONS. 

Section  1.  Self-help. 

2.  Vengeance  and  Feud. 

3.  Crime,  originally  a  Private  Offense  only. 

4.  Composition. 

5.  Apj)eals. 

a.  Compurgation. 

h.    Ordeal. 

c.  Wager  of  Battle. 

6.  Indictment. 

7.  Roman  Law. 

8.  Colonial  Law. 


§  1.  Self-help. 

There  has  always  been,  with  people  in  a  rude  state  of 
civilization,  an  indisposition  to  forego  an  impulse  that 
seems  to  have  been  universal  to  seek  in  person  immediate 
redress  for  real  or  imaginary  grievances. 


A  wild  spirit  of  freedom  reluctantly  and  doggedly  submits 
to   forms    of    law    wliicli    liamper    natural    unrestrained 

liberty. 

No  doubt  a  condition  of  things  existed  with  all  races  ^  in 
a  barbarous  state  as  was  found  among  the  most  primitive 
period  of  German  society  when,  "  through  the  doctrine  of 
self-help,  the  individual  himself  exercised  active  judicial 
powers,"  and  the  punishment  of  crimes  lay  without  the 
jurisdiction  of  courts,  which  did  not  indeed  exist* 

"  The  Archaic  German  procedure,"  as  Siegel  has  said,t 
"is  essentially  and  radically  characterized  by  the  absolute 
independence  (as  opposed  by  the  judicial  power)  by  which 
the  individual  enforces  his  rights."  He  "  was  the  protector 
of  his  own  rights  by  whatever  power  he  possessed,  and  w-as 
in  the  same  manner  the  avenger  of  his  wa-ongs  " — a  state  of 
society  similar  to  that  found  among  the  North  ximerican 
Indians — and  may  safely  be  said  to  have  characterized  the 
infancy  of  all  nations. 

§  2.    Vengeance  and  Feud. 

From  the  doctrine  of  self-help  arose  what  was  termed 
vengeance  and  thereout — what  seems  to  have  been  regarded 
as  a  duty  on  the  part  of  the  relatives  and  friends  of  the 
person  w^ronged,  to  resent  his  injury  and  take  part  in  his 
quarrel.  His  adversary  was  similarly  supported.  How- 
ever questionable  the  conduct  of  the  self-styled  avenger, 
"  he  found  kinsmen  and  associates  to  maintain  his  cause. 
The  redress  which  the  one  party  demanded,  the  other 
thought  pusillanimous  to  grant.  Violence  was  resorted  to, 
retaliation  follow^ed,  and  a  civil  or  rather  domestic  war 
ensued,"  called  &  feud.  X 

As  government  grew  up  and  became  recognized  ven- 
geance was  placed  under  its  surveillance.    If  resort  was  had 

*The  Anglo-Saxon  Legal  Procedure,  by  J.    L.  LaugMin,  in    "Anglo- 
Saxon  Law,"  p.  262. 

f  Geschichte  des  deut.  Cferichtsverf . ,  p.  51. 
i  Cf.  Allen,  p.  101. 


to  it,  it  was  necessary  to  obtain  permission  from  the  court, 
or  thereafter  justify  before  the  same  tribunal. 

While  vengeance  thus  became  an  appendage  to  the  law, 
the  feud  was  outside  the  law  and  in  bold  opposition  to  it. 
The  feud  which  was  chronicled  by  Tacitus  held  its  j^ositiou 
even  in  England  long  after  the  conquest.* 

§  3,    Crime  originally  a  Private  Offense  only. 

Crime  was  not  originally  regarded  as  an  oifense  against 
society  :  there  existed  no  liability  to  the  state,  but  to  the 
injured  party.  All  that  the  state  professed  to  do  w^as  to 
23rovide  some  definite  process  by  which  the  injured  party 
could  assert  his  rights.  Bodily  punishment,  exce23t  for  the 
slave,  was  unknown.  The  prosecution  w^as  not  by  the 
state  but  by  the  individual,  and  in  the  nature  of  a  civil  pro- 
ceeding for  damages.  The  subsequent  and  present  distinc- 
tion between  civil  and  criminal  law  was  unknoTvn.t 

§  4.    Composition. 

In  the  rude  courts  that  w'ere  organized  the  matter  at 
stake  was  "  simply  money  or  money's  worth,"  and  the 
principles  of  procuring  compensation  were  therein  settled 
whereby  to  console  the  plaintiff  for  the  injuries  received. 

The  system  of  composition  prevailing  was  even  extended 
over  cases  of  killing,  and  a  payment  of  a  compensation  by 
the  accused  was  the  recognized  penalty  attaching  to  the 
charge  made.  The  theory  of  money  satisfaction,  as  it 
became  accepted,  was  the  great  step  towards  the  limitation 
of  vengeance  and  the  consequent  feuds. 

§  5.  Ajipeals. 

An  appeal  was  the  name  applied  to  a  formal  accusation 
made  by  some  private  person  against  another   of  having 

*  Dugdale  Baronage,  1,  138,  362,  365  ;  Vide  Allen,  pp.  123,    124. 
f  Superstition  and  Force,  by  Lea,  pages  15,  99,  and  100. 


committed  some  heinous  crime  *  and  being  the  only  judicial 
proceeding  against  criminals  recognized  for  many  centuries. 
It  was  commenced  against  the  accused  to  compel  him  to 
clear  himself  of  the  charge,  and  it  might  be  brought  within 
a  year  and  a  day  by  the  injured  party  or  his  kin,  and  was 
for  damages. 

Anciently  appeals  lay  for  treason  as  well  as  for  felonies, 
but  appeals  for  treason  were  long  since  abolished  by 
statutes,  5  Edward  III.,  c.  9 ;  25  Edward  III.,  c.  24,  and  1 
Henry  IV.,  c.  14,  and  for  all  other  crimes  quite  recently  by 
the  statute,  59  George  III.,  c.  46.t 

a.    Compurgoiion. 

The  defendant  could  escape  the  penalty  of  the  offense 
charged  by  the  aid  of  compurgators  or  fellow-swearers, 
persons  who  ajDpeared  to  join  to  the  oath  of  an  accused 
party  their  own  oaths  to  their  belief  in  his  innocence. 
To  this  practice  of  purgation  has  been  referred  the 
origin  of  jury  trials.  The  compurgators  resembled,  in 
some  respects,  the  laudatores  of  the  Roman  law,  who 
were  produced  to  show  the  improbability  that  a  person 
so  supported  in  his  adversity  by  his  friends  could  have 
been  guilty  of  the  crime  imputed  to  him.  Like  wit- 
nesses to  character  of  the  present  day.  The  system  of  com- 
purgation was  in  use  amongst  all  the  various  nations  of 
the  Teutonic  family.  The  number  of  compurgators  varied 
according  to  the  nature  of  the  charge  and  other  circum- 
stances.:]: 

The  trial  by  compurgators,  was  an  allowable  mode  of 
disproving  accusations  of  crime  until  the  Assize  of  Claren- 
don (1166),  re-enacted  at  Northampton  (1176).  From  that 
time  the  accused,  upon  presentment  by  an  inquest,  must 
undergo  the  ordeal  if  he  would  establish  his  innocence.§ 

*  4  Blackstone's  Com.,  312. 

f  1  vol.,  Bouvier's  Law  Diet.,  p.  127. 

X  Forsyth's  Trial  by  Jury,  pp.  62  and  63. 

§  Placita  Anglo-Xormannica,  Bigelow,  p.  xviii. 


Under  tlie  name  of  wager  of  law,  the  trial  by  compurgators 
was  abrogated  in  England  in  1833. 

h.    Ordeal. 

The  ordeal  was  also  open  to  the  prisoner.  It  was  a 
ceremony  of  various  kinds,  usually  by  fire  or  water,  designed 
to  determine  the  guilt  or  innocence  by  a  supposed  refer- 
ence to  the  judgment  of  God — in  this  respect  like  the  trial 
by  battle  now  to  be  referred  to. 

The  ordeal  was  abolished  in  the  early  part  of  the  thir- 
teenth century,  during  the  reign  of  Henry  III.  (1219),  by 
the  Lateran  Council,  in  November,  1215.* 

c.    Wager  of  Battle. 

The  person  appealed,  i.  e.  accused  of  crime,  could  under 
certain  circumstances  wage  his  battle,  a  practice  introduced 
in  England  by  the  Normans,  under  which  the  defendant  in 
doubtful  cases  might  challenge  his  accuser  to  mortal 
combat. 

To  such  an  extent  did  the  right  to  challenge  to  combat 
prevail  that  a  suitor  could  challenge  an  adverse  witness. 
The  position  of  the  judge  was  little  better:  a  disappointed 
pleader  could  challenge  the  Court  itself,  which  for  many 
years  was    in  fact  the  only  mode  of   reversing  a  judgment. 

The  right  of  trial  by  battle  was  claimed  the  last  time  in 
England  in  1818,t  though  it  became  obsolete  for  centuries 
before,  and  was  abolished  by  statute  in  the  following  year, 
but  prior  thereto  in  this  state,  on. February  6,  1786,  by  an 
act  reciting  that  "  the  barbarous  custom  hath  deservedly 
fallen  into  disuse." 

§  6.  Indictment. 

It  became  necessary  soon  after  the  conquest  to  guard 
against  the  immunity  offenders  would  find  when,  parties 
might   be  fearful   or  unwilling  to    make   themselves   con- 

*  1  Stubb's  Coast.  His.,  619.  f  1  Barn.  &  Aid.,  405. 


6 

spicuous  as  accusers,  and  incur  tlie  danger  of  a  challenge 
to  single  battle. 

To  meet  this  contingency,  liable  at  any  time  to  arise,  it 
was  enacted  in  a.  d.  1164  that,  where  a  person  was  sus- 
pected whom  no  one  dared  openly  to  accuse,  the  sheriff,  on 
the  requisition  of  the  bishop,  should  swear  twelve  men  of 
the  neighborhood  or  vill,  in  the  presence  of  the  bishop, 
and  these  were  to  declare  the  truth  thereof  in  the  nature 
of  an  indictment,  according  to  their  conscience — a  body 
with  functions  therefore  similar  to  our  Grand  Jury. 

It  seems,  however,  to  have  been  the  common  practice, 
before  the  statute  of  3  Hen.  7,  c.  1,  to  defer  the  prosecution 
on  the  indictment  until  the  appeal  (which  continued)  could 
be  determined.  If  the  trial  on  the  indictment  preceded  the 
bringing  of  the  appeal,  and  the  defendant  was  acquitted,  by 
a  law  passed  in  1486  he  was  held  in  prison  or  on  bail  until 
the  time  for  prosecuting  the  appeal  (a  year  and  a  day)  by 
the  widow  or  next  of  kin — limited  by  law — had  expired.* 

After  the  year  1487  the  usual  mode  of  proceeding  was 
by  indictment,  and  the  trial  by  jury  had  at  about  the  same 
time  developed  into  substantiall}'  what  it  is  to-day.t 

It  is  not  designed  in  this  work  to  treat  of  indictments. 
Reference  to  them  is  made  because  they  were  at  one  time 
the  usual  instruments  whereby  an  accused  person  was 
called  on  to  answer,  and  the  recognized  embodiment  of  a 
complaint  which  has  obtained  a  separate  existence.  A  com- 
plaint made  to  a  magistrate  is  now  the  common  and  usual 
step  to  take  when  arrest  is  sought  to  be  made  by  process, 
and  the  initiation  of  proceedings  by  a  Grand  Jury  unusual, 
even  exceptional. 

Tlie  indictment  is  ordinarily  found  after  a  prior  hearing 
and  determination  by  judicial  officers  authorized  thereto, 
and  is  an  act  in  the  system  of  acts  through  which  the 
higher  criminal  proceedings  must  pass,  or  which  an 
accused  in  other  cases  has  the  right  to  insist  on  ere  fur- 
ther action  is  taken  aojainst  him. 


*  3  Hen.  VII.,  cap.  1.  f  Forsyth's  Trial  by  Jury,  p.  1,31. 


The  Grand  Jury  does  not  now,  as  formerly,  initiate  pro- 
ceeding, but  will  generally  content  itself  with  reviewing 
cases  originated  elsewhere,  and  by  law  thereafter  submitted 
to  it  for  approval  prior  to  being  sent  to  trial. 

Should  a  Grand  Jury  proceed  in  the  first  instance  and 
indict,  the  accused  will  be  without  the  privilege  of  an 
examination,  secured  to  him  in  all  other  cases. 

Grand  Juries,  therefore,  will  properly  reluctantly  enter- 
tain charges,  but  will  refer  complainants  to  a  magistrate  in 
order  that  the  accused  may  not  be  deprived  of  the  aid  of 
an  examination. 

It  may  well  be  questioned  w^hether  it  ought  to  be  in 
the  power  of  any  person  or  body  to  cause  a  person  to  be 
put  on  trial  without  a  previous  hearing. 

The  "  origin"  of  the  Grand  Jury  "  in  England,"  wrote  an 
eminent  criminal  lawyer,*  "  Was  at  a  time  when  the  conflicts 
between  the  powe'r  of  the  government  on  the  one  hand,  and 
the  rights  of  the  subject  on  the  other,  were  fierce  and 
unremitting  ;  and  it  was  wrung  from  the  hands  of  the 
crown  as  the  only  means  by  which  the  subject,  appealing 
to  the  judgment  of  his  peers  under  the  immunity  of 
secrecy  and  irresponsibility  for  their  acts,  could  be  rend- 
ered secure  against  oppression.  Happily,  in  our  country, 
no  illustration  of  its  value  in  this  respect  has  been  fur- 
nished." 

We  have  just  seen  that  the  germ  of  the  Grand  Jury 
system  is  traceable  likewise  to  a  scheme  designed  to 
counteract  the  evils  arising  from  a  state  of  affairs  which 
has  long  since  ceased  to  exist,  i.  e.,  the  right  of  an  accused 
person  to  challenge  his  accuser  to  single  combat. 

Since  the  exigencies  which  gave  rise  to  the  Grand  Jury 
system  are  now  no  longer  in  being,  the  question  of  its  utility 
will  sooner  or  later  be  thoroughly  agitated.  From  its 
nature  it  contains  seA^eral  elements  of  danger  to  public  and 
private     liberty.      Its     deliberations    are     one-sided — the 


*  David  Graham,  in  a  note  written  for  the  proposed  criminal  code  for 
the  State  of  New  York  (1850),  pp.  115-129. 


8 

accused  not  being  afforded  an  opportunity  of  explaining  or 
defending  liimself  against  the  charge.  It  is  a  secret  body, 
shut  out  from  public  scrutiny,  beyond  the  reach  of  law,  and 
might  be  used  as  a  powerful  weapon  in  the  hands  of  an 
unscrupulous  district  attorney. 

On  the  question  of  bail,  as  the  evidence  before  the  Grand 
Jury  is  not  written  and  cannot  be  disclosed,  the  proper  dis- 
cretion and  control  cannot  be  exercised  that  can  be  applied 
to  action  taken  by  magistrates.'^ 

Does  it  not  seem  a  senseless  proceeding  to  compel  the 
attendance  of  the  witnesses  for  the  prosecution  before  a 
Grand  Jury  for  the  purpose  of  enabling  it  to  give,  at  best, 
but  a  partial  hearing  after  a  full  examination  has  been 
had  before  the  committing  magistrate,  where  the  accused 
was  present  with  his  counsel  to  defend,  or  confessing  his 
guilt  ? 

With  the  circumstances  no  longer  existing  that  suggested 
the  Grand  Jury  system,  the  injustice  that  may  be  done  to 
one  sent  to  trial  without  a  preliminary  hearing  by  cutting 
off  through  indictment  what  elsewhere  is  a  right,  the 
inability  justly  to  determine  the  cj[uestion  of  bail  (by  reason 
of  the  evidence  on  which  the  indictment  is  found  being 
inaccessible),  the  inconvenience  to  which  the  prosecution 
may  be  put  in  attending  before  a  Grand  Jury  after  a  case 
has  been  fully  ventilated,  usually  a  mere  matter  of  form, 
unless  preservable  by  proper  legislation,  the  Grand  Jury 
is  destined  to  take  a  place  among  other  judicial  contrivances 
deservedly  obsolete. 

§  7.  Roman  Law. 

In  strange  contrast  with  the  English  laws,  in  the  eye  of 
the  Roman  law  no  one  was  so  much  as  accused  until  the  accu- 
sation had  been  made  in  writing  according  to  legal  form,t 
and  the  trial  was  had  to  determine  the  guilt  or  innocence 
of  the  defendant,  while  until  within  a  few  centuries  ago  the 

*  Territory  vs.  Benoit,  1  Martins'  Rep.,  142. 
f  Pike's  Hist,  of  Crime,  Vol.  I.,  p.  17. 


9 

trial  outside  of  the  domains  of  Rome  was  a  j^rivilege 
whereby  an  accused  person,  akeady  condemned  simply 
because  a  charge  was  made  against  him,  might  clear  him- 
self. 

§  8.   Colonial  Law. 

The  laws  in  existence  in  England  were  either  expressly 
extended  to  the  Colonies  by  Parliament  or  the  royal 
authority,  or  adopted  by  the  Provincial  assemblies,  either 
by  special  eliactments  or  practically  by  long  use  acquiring 
the  force  of  law.  The  Colonists  claimed  the  benefits  of 
the  laws  recognized  in  England  as  the  "  birthright  of  the 
inhabitants,"  but  against  this  the  general  opinion  with  the 
lawyers  in  England  seems  to  have  been  to  the  effect  that 
the  Provinces  could  avail  themselves  only  of  such  privileges 
as  were  expressly  granted  by  the  mother  country,  or  to 
which  the  latter  gave  its  assent,  the  authorities  thereof 
always  claiming,  and  at  times  exercising,  a  veto  power 
over  the  legislation  of  the  Colonists. 


10 


CHAPTER  IL 


COMPLAINANT. 


Section  9.  Who  is  the  Complainant. 

10.  Who  may  be. 

a.  Infamous  Persons. 

h.  Deficient  Understanding. 

c.  Husband  and  Wife. 

11.  When  Corroborative  Proof  is  Necessary. 

a.  Perjury  or  Subornation  of. 

h.  Seduction  under  Promise  of  Marriage. 

c.  Abduction  for  Prostitution. 

d.  Treason. 

e.  Accomplices. 

12.  Liability  of  Complainant. 


§  9.    Who  is  the  Gomplamant. 

Strictly  speaking,  the  jjeople  complain,  and  the  action  is 
so  entitled,*  and  all  sworn  for  the  prosecution  are  mere  wit- 
nesses. It  is  usual,  however,  to  call  some  one  or  more  per- 
sons participating  in  the  prosecution  the  complainant, 
but  the  person  so  characterized  is  not  designated  as  is  the 
plaintifii'  in  a  civil  suit.  The  party  instituting  the  charge 
must  be  ascertained  to  determine  who  is  the  complainant. 
The  Code  uses  the  names  "  informant  or  prosecutor."t 

Whoever  may  have  a  special  interest  or  duty  in  bringing 
an  offender  to  justice  is  usually  the  complainant ;  such  as 

*  Code,  §  6.  f  §  148. 


11 

the  person  who  has  been  assaulted,  he  whose  property  has 
been  stolen,  or,  in  certain  cases,  the  officer  making  the  arrest. 
To  discover  definitely  who  is  the  complainant  is  important, 
in  order  to  fix  the  responsibility  for  a  prosecution  should 
the  accused  party  choose  to  seek  redress  at  law  for  injuries 
thereby  sustained. 

§10.    Who  may  he  a  ComplaiiKint. 

The  statutes  are  silent  on  the  question  of  the  qualifica- 
tions of  complainant.  If  the  evidence  of  the  complainant 
is  not  essential  to  the  prosecution,  but  is  supplied  by 
others  produced  or  producible  by  him,  then  there  can  be 
no  question  as  to  his  right  to  the  ear  of  the  court.  If 
otherwise,  the  administration  of  the  oath  to  him,  which  is 
the  first  duty  imposed  on  the  magistrate,  presupposes  that 
the  person  to  become  at  once  a  witness  is  qualified  to  be 
such." 

The  statute  is  as  follows : 

"  Whenever  complaint  shall  be  made,  etc.,  it  shall  be  the 
duty  of  the  magistrate  to  examine  on  oath  the  complainaut."t 

The  Code  reads  thus  : 

"  When  an  information  is  laid,  etc.,  the  magistrate  must 
examine  on  oath  the  informant  or  prosecutor."  t 

It  was  held,  however,  in  one  case  that  the  statute  i§  gen- 
eral and  contemplated  a  complaint  on  oath  by  any  person 
competent  to  make  an  oath  in  legal  proceedings  or  to  make 
an  affidavit,  and  does  not  require  the  person  to  be  qualified 
to  be  a  witness.§ 

Where  an  oath  is  not  deemed  essential  as  foundation  for 
the  issuing  of  a  warrant,  the  court  held  that  a  warrant 
issued  on  the  complaint  under  oath  of  an  incompetent 
witness  was  good.ii 

*  Vol.  1,  Bishop's  Crim.  Proc,  §  282. 
f  R.  S.,  Part  iv.,  chap,  ii.,  title  ii  ,  §  2. 
X  %  148. 

§  People  vs.  Crandon,  17  Hun,  p.  490. 

II  South   Carolina   State  vs.  Killet,  2  Bailey,  289  ;    U.  S.  vs.  Burr,  Burr's 
Trial,  Phila.  ed.,  11,  15. 


12 

a.  Infamous  Persons. 

Persons  made  iufamous  bj  being  adjudged  guilty  of  cer- 
tain crimes  are  excluded  from  testifying.  This  is  put  on  the 
ground  of  their  insensibility  to  the  obligation  of  an  oath.* 

Under  the  general  j^rovision  of  the  New  York  Code  of 
Civil  Procedure,  by  which  a  conviction  for  crime  is  not  to 
exclude  a  witness  from  testifying  but  simply  to  be  admis- 
sible to  affect  the  weight  of  the  testimony  of  such  witness, 
any  disability  heretofore  attaching  to  felons  on  that  score 
is  removed. t 

A  witness  is  pre&umed  to  be  competent.  To  sustain  an 
objection  to  a  witness  on  the  ground  of  infamy,  the  record 
of  his  conviction  must  be  produced. | 

A  conviction  of  an  iufamous  offense  in  another  state  does 
not  disqualify  the  party  as  a  witness.§ 

h.  Deficient   Understanding. 

While  the  deficiency  of  understanding  exists,  the  person 
so  lacking  mental  capacity  is  not  admissable  to  be  sworn 
as  a  witness.  But  if  the  cause  be  temporary,  and  a  lucid 
interval  should  occur,  or  a  cure  be  effected,  the  competency 
also  is  restored.  || 

Children  of  the  age  of  fourteen  are  presumed  to  have 
common  discretion,  but  under  that  age  it  is  not  so  presumed. 
Therefore  inquiry  is  made  as  to  the  degree  of  understand- 
ing which  the  child  offered  as  a  witness  may  possess  ;  and 
if  he  appears  to  have  sufficient  natural  intelligence,  and  to 
have  been  so  instructed  as  to  comprehend  the  nature  and 
effect  of  an  oath,  he  is  admitted  to  testify  whatever  his  age 
may  be.  Evidence  of  children  even  of  the  age  of  five  years 
has  been  admitted. IF 


*  Vol.  1.,  Greenl.  on  Evi.,  §  372. 

t  §  832,  N.  Y.  Code  of  Civil  Procedure  ;  People  vs.  Perry,   vol.  8,  N.  Y. 
Weekly  Dig. ,  p.  445. 

X  Elverson  vs.  Vanderpoel,  69  N.  Y.,  610. 
§  Siras  vs.  Sims,  75  X.Y.,  466  ;  77  N.  Y.,  400. 
1  Vol.   I.,  Greenl.  on  Evi.,  §  365. 
T  Id.,  §  367. 


13 

c.  Husband  and   Wife. 

Neither  the  husband  or  wife  is  competent  or  compellable 
to  give  evidence  for  or  against  the  other  in  any  criminal 
action  or  proceeding  (except  to  prove  the  fact  of  marriage 
in  case  of  bigamy).  This  common  law  disability  has  not 
been  removed  from  criminal  proceedings,  either  by  the 
special  statute  (Laws  of  N.  Y.,  1867,  chap.  887,)  enabling 
husband  and  wife  to  be  witnesses  for  or  against  each  other, 
or  by  the  new  N.  T.  Code  of  Civil  Procedure.  * 

But  there  are  certain  exceptions  to  this  rule  allowed 
from  the  necessity  of  the  case,  partly  for  the  protection  of 
the  wife  in  her  life  and  liberty,  and  partly  for  the  sake  of 
public  justice. t  In  prosecutions  for  violence  committed, 
in  which  cases  the  wife  may  therefore  be  a  witness  against 
the  husband  to  prove  injury  to  her  person,  she  may 
likewise  be  a  witness  for  him  to  disprove  such  injury. t 

As  to  other  matter  relating  to  this  head,  see  title  "  Wit- 
nesses for  Complainant"  (§  30);  and  as  to  evidence  generally, 
that  subject  being  outside  of  the  plan  of  this  treatise, 
Greenleaf  and  Phillips,  with  the  aid  of  subsequent  statutes, 
will  furnish  the  needed  information. 

§  11.  When  Coiv  oborative  Proof  is  Xecessary. 
a.  Perjury  or  Subornation  of 
TVhen  the  charge  to  be  made  is  perjury,  or  subornation 
of  perjury,  the  complainant  should  come  prepared  with 
evidence  or  indicate  testimony  that  will  be  forthcoming  on 
subpoena  to  be  served,  to  sustain  the  chief  witness  to  the 
accusation ;  for  rarely,  if  ever,  can  a  conviction  be  had  in 
this  class  of  cases,  on  the  uncorroborated  evidence  of  one 
witness. 

b.  Seduction  under  Promise  of  3Iarriage. 

Should  the  complaint  to  be  preferred  be  seduction  under 
promise  of  marriage,  such  corroboration   is   indispensable. 

*  §828;  People  vs.  Crandon.  17  Hun,  p.  490. 

f  Vol.  1,  Greenl.  on  Evi.,  §  348. 

X  State  vs.  Xeill,  6  Ala.  Kep. ,  685  ;  People  vs.  Fitzpatrick,  5  Park  C.  R..  p.  26. 


u 

The  evidence  of  tlie  female  seduced   standing   alone    is   in- 
sufficient to  condemn.* 

c.  Abduction  for  Prostitution. 
Under  the  N.  Y.  Laws  no  conviction  shall  be  had  for 
enveigling  or  enticing  or  taking  away  any  unmarried  female 
of  previous  chaste  character,  under  the  age  of  twenty-five 
years,  for  the  purj)ose  of  prostitution,  or  for  assisting 
thereat,  on  the  testimony  of  the  female  so  enveigled  or  en- 
ticed away,  unsupported  by  other  evidence. t 

d.  Treason. 
Since  two  lawful  witnesses  to  the  same  overt  act  in  a 
case  of  treason,  or  one  witness  to  one  overt  act,  and  another 
witness  to  a  different  overt  act  to  the  same  treason,  are 
necessary  before  conviction,  the  magistrate  will  secure  this 
requisite  proof  before  issuing  a  warrant.:}: 

e.  Accomplices.  * 

"While  the  uncorroborated  statements  of  an  accomj)lice 
may  not  be  rejected  absolutely,  since  a  jury  may  convict  on 
his  evidence  alone,  still  it  is  a  rule  to  require  corrobora- 
tion, which  rule  though  is  one  of  practice  and  not  of  law.  § 

§  12.  Liability  of  Complainant. 

At  the  time  when  an  accusation  imposed  on  the  j)erson 
charged  with  crime  the  burden  of  proving  his  innocence, 
and  that  commonly  either  by  imperiling  his  life  in  single 
combat,  or  by  passing  safely  through  ceremonies  calcu- 
lated in  the  absence  of  fraud  to  be  possible  only  through 
supernatural  agencies,  the  position  of  a  defendant  in  a  crim- 
inal case  was  one  surrounded  with  the  most  serious 
consequences.  Naturally,  therefore,  on  him  who  had  it  in 
his  power  to  put  his  fellow-man  in  such  great  danger,  there 
were  placed  grave  penalties. 

*  Laws  of  1848,  ch.  111. 

t  L.  1848,  ch.  105. 

X  E.  S.,  Part  iv.,  chap,  ii.,  title  v.,  §  15,  4  N.  Y.  S.  C.  R.  (T.  &  C),  472. 

§  Lindsay  vs.  People,  63  N.  Y.,  143. 


15 

The  fact  tliat  a  complainant  was  at  all  times  liable  to  be 
cliallengecl  to  figlit,  operated  as  a  great  check  against  wan- 
ton or  unjust  charges.  If  the  prosecution  when  challenged 
"  became  recreant,  that  is  a  crying  coward  or  craven,"  the 
appellee  (defendant)  not  onl}^  recovered  his  damages,  b^it 
could  also,  as  it  seems,  plead  his  acquittal  in  bar  of  a  sub- 
sequent indictment  or  appeal.* 

In  the  thirteenth  century,  the  English  law  provided  for 
the  imprisonment  of  a  vanqiiished  appellant  (complainant) 
in  capital  cases  as  a  calumniator,*  while  the  defendant,  if 
defeated,  was  executed  and  his  property  confiscated.  The 
same  distinction  is  to  be  found  in  the  contemporary  custom 
of  Normandy,  but  media3val  legislation,  however,  was  not 
usually  so  lenient  to  a  worsted  appellant.  It  was  widely 
current  during  the  middle  ages  that  the  man  who  brought 
a  false  charge  was  adjudged  the  penalty  which  was 
incurred  by  the  defendant  if  convicted.! 

At  present  the  burden  of  proof  being  on  the  jjrosecu- 
tion,  having  been  shifted  there  from  the  shoulders  of  the 
accused,  and  the  character  of  the  hearing  and  trial 
calculated  to  demonstrate  innocence,  the  situation  of  a 
defendant  is  quite  relieved  from  apprehension,  and  re- 
quires at  the  hands  of  an  accuser  a  much  milder  penalty 
than  formerly.  It  is  now  deemed  unnecessary  to  imj^ose  a 
liability  on  a  complainant,  except  that  arising  out  of  a  per- 
missible civil  suit  for  damages.  If  the  prisoner  is  unlaw^- 
fully  detained,  the  accuser  may  be  pursued  in  an  action  for 
a  false  imprisonment.  If  the  proceedings  were  prompted 
from  malice,  ajid  there  w^as  a  want  of  probable  cause,  a 
liability  will  be  enforced  in  a  suit  for  malicious  prosecu- 
tion.! But  such  latter  suit  cannot  be  commenced  by  a 
plaintiff  until  the  prosecution  against  him  is  terminated  in 
his  acquittaL§ 

*  2  Hawk.,    PL  C,  p.  COO;  Id.  601. 

t  Stat.  WestM.  2,  13th  ed.  1,  c.  13,  vol.   1. 

:}:  Brown  ®s.  Chadsey,  39  Barb.,  253;   Secor  vs.  Babcock,  2  Johns.,   203. 

§  McCormick  vs.  Si.sson,  7  Cow.,  715;  Mills  vs.  McCoy,  4  Cow.,  406; 
Burt  vs.  Place,  4  Wend.,  591  ;  Gorton  vs.  De  Angelis,  6  Wend.,  418  ;  Clark 
m.  Cleveland,  6  Hill,  844  :  Bacon  vs.  Townsend,  6  Barb.,  426. 


16 

The  complainant  is  not  liable  for  tlie  issuance  of  a  war- 
rant unless  lie  directs  it,  or  sanctions  it,  or  interferes  in  tlie 
arrest.* 

If  a  warrant  is  void,  the  delivery  of  it  and  the  direction 
to  arrest  by  a  complainant  makes  him  liable  for  false  im- 
prisonment.! 

And  a  complainant  is  not  answerable  if  a  justice  make  a 
mistake  in  determining  the  question  whether  a  crime  had 
been  committed,  and  whether  there  was  probable  cause  to 
believe  the  person  charged  to  be  the  one  who  committed  it.  X 

The  penalty  for  perjury,  of  course,  is  incurred  if  com- 
mitted by  any  person  at  any  stage  of  the  proceedings. 

*  Payne  v.  Barnes,  5  Barb.,  468. 
f  Lewis  V.  Rose,  6  Lansing,  206. 

i  lb.  ;  see  Waldheim  v.  Sickel,  1  Hilt.,  45  ;  39  Barb.  253,  56;  13  Abb., 
276;  37  Barb.,  159;  5  Park,  185;  38  Barb.,  339;   17  Abb.,  237. 


17 


CHAPTER  III. 

"WHERE   COMPLAINT   TO   BE   MADE. 

Section  13.  Common  Law. 

14.  Constitution  of  the  United  States. 

15.  The  Doctrine  in  the  States. 

a.  New  York  State. 

16.  Particular  Cases. 

a.  New  York  State. 

17.  Inferior  Districts. 


§  13.   Common  haw. 

There  is  no  constitutional  or  legislative  provision  declar- 
ing in  terms  where  a  complaint  is  to  be  made,  but  suffi- 
cient material  exists  from  which  to  adduce  the  needed 
information. 

The  common  law  points  out  the  locality  in  which  the 
prosecution ior  crimes  can  be  carried  on  by  prescribing,  "it 
must  be  in  the  county  of  their  commission,  and  if  a  county 
is  divided,  a  criminal  act  done  before  its  division  in  the 
part  which  is  created  a  new  county,  must  be  prosecuted  in 
the  new.  The  oflfense  is  against  the  state  ;  the  trial  in  the 
county."  " 

But  the  complaint  is  a  part  of  the  prosecution,  therefore 
in  the  absence  of  any  provision  otherwise  directing  the 
prosecution  of  offenders,  the  principle  of  the  common  law 
will  prevail,  and  the  place  wherein  to  prefer  the  comjDlaint 
will  be  where  the  offense  was  committed. 

In  the  application  of  the  general  common  law  rule  diffi- 
culties were  encountered,  and  some  removed  by  the  English 

*  Bishop's  Criminal  Procedure,  Vol.  1,  §§  47  and  49. 


18 

statute  2  and  3  Edw.  YL,  c.  24,  §  2  (wliicli  is  common  law  in 
this  country),*  in  the  cases  where  death  from  felonious 
assault  and  battery  and  poisoning  occurred  in  a  different 
county  from  that  in  which  the  act  was  committed.  By  this 
statute  the  indictment  if  found  in  the  county  where  the 
death   shall  take  place  will  be  good  and  effectual. 

§  14   Constitution  of  the  United  States. 

The  place  of  trial  being  of  great  importance  to  an 
accused  person,  as  seriously  affecting  his  interest,  it  was 
deemed  proper  to  insert  a  proyision  on  the  subject  in  the 
organic  law  of  the  land,  in  which  the  principle  of  the  common 
law  is  recognized. 

The  constitution  of  the  United  States  j)royides  that  "  the 
trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury ;  and  such  trial  shall  be  held  in  the  state  where  the 
said  crimes  shall  liaye  been  committed ;  but  when  not  com- 
mitted within  any  state,  the  trial  shall  be  at  such  place  or 
places  as  the  Congress  may  by  law  direct.f  And  in  an 
amendment  thereto,  "In  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  state  and  district  wherein 
the  crime  shall  haye  been  committed,  which  district  shall 
haye  been  preyiously  ascertained  by  law."| 

It  will  be  obseryed  that  the  place  of  trial  is  confined  by 
the  amendment  to  narrower  limits. 

§  15.   The  Doctrine  in  the  States. 

The  doctrine  that  "  the  yerification  of  crimes  shall  be  in 
the  yicinity  where  they  happen,"  is  secured  in  some  states 
by  constitutional  proyisions,  and  in  others  by  legislatiye 
enactments,  and  is  indicatiye  of  the  locality  of  initiating 
criminal  proceedings. 

*  The  State  vs.  Moore,  6  Fost.,  N.  H.,  448 ;  Riley  vs.  The  State,  9  Humph., 
646. 

t  Const.  U.  S.,  art.  3,  §  2,  cl.  3. 

t  Const.  U.  S.,  Amend.,  art.  6 ;    U.  S.  vs.  Britton,  2  Mason,  464. 


19 


a.  New  Yorli  State. 

Besides  the  conclusion  to  be  taken  from  the  common 
law,  the  theory  of  which,  as  we  have  seen,  is  adopted  by 
the  United  States  Constitution  and  the  constitutions  or 
statutes  in  the  several  states  as  to  the  place  wherein  to 
originate  criminal  proceedings  by  a  complaint  to  a  magis- 
trate, we  find  in  this  state  several  enactments  relating  to 
indictments  and  trial  further  suggesting  the  locality  where- 
in to  submit  a  complaint,  thus  : 

Each  court  of  oyer  and  terminer  shall  have  power  : 
1.  To  inquire,  by  the  oath  of  good  and  lawful  raen  of  the 
same  county,  of  all  crimes   and   misdemeanors,   committed 
or  triable  in  such  county.* 

Every  court  of  sessions  shall  have  power  : 
1.  To  inquire,  by  the  oaths  of  good   and   lawful    men  of 
the  county,  of  all  crimes  and  misdemeanors    committed   or 
triable  in  such  county. t 

And  all  issues  of  fact  joined  upon  any  indictment  shall 
be  tried  by  a  jury  in  the  county  where  such  indictment 
was  found ;  unless,  for  special  causes,  the  supreme  court 
shall  order  an  indictment  removed  into  that  court  to  be 
tried  in  some  other  county.  | 

§  16.  Farticidar  Cases. 

As  has  been  heretofore  conveyed,  in  endeavoring  to  de- 
termine the  place  wherein  to  lodge  a  complaint  by  the 
guide  laid  down, — i.  e,  where  was  the  offense  committed  ? — 
cases  arise  which  do  not  yield  a  ready  response  to  this 
question.     Whence  grows  this  difficulty  ? 

"  The  locality  of  the  crime  is  not  necessarily  in  law,  or 
always  in  fact,  in  the  same  county  Avith  the  personal  presence 
of  him  who  commits  it.  *  *  *  The  intent  follows  and 
dwells   with   the    act,  and  this   may  be  where  the   bodily 

*  R.  S.,  Part  iii.,  chap,  i.,  title  iv.,  §  29. 

fib.,  §  5,  titles. 

X  lb.,  Part,  iv.,  chap,  ii.,  title  v.,  §  1. 


20 

presence  is  not.  Thus,  if  a  man  stands  upon  shore  within  a 
county,  and  by  discharging  fire-arms  kills  another  upon  the 
high  seas  without  the  county,  he  is  triable  for  the  murder 
by  the  admiralty  which  has  jurisdiction  over  the  locality 
where  the  ball  took  effect,  and  not  over  the  place  where  he 
stood  to  perpetrate  the  crime.*  And  one  who  poisons 
another  by  the  help  of  an  innocent  agent  is  guilty  of  the 
murder  in  the  county  where  the  poisoning  took  place,  t 
So  a  person  who  puts  forth  a  libel  ;  t  or  a  threatening  let- 
ter ;§  or  a  letter  inclosing  a  forged  instrument  intended 
to  defraud  the  one  to  whom  it  is  addressed  ;  II  or  a  letter 
making  a  false  pretense  to  a  person  who  thereupon  parts 
with  his  goods  in  the  county  where  he  receives  it ;  IF  or 
solicits  one  to  commit  a  crime,  **  may  be  indicted  in  the 
county  to  which  it  is  sent,  though  he  does  not  go  there 
himself.  ^  ^  ^  ^  ^  And  one  who  criminally 
neglects  to  do  any  act,  as  to  surrender  to  a  fiat  in  bank- 
ruptcy, tt  or  repair  a  highway,  ||  is  answerable  for  the 
neglect  in  the  county  where  the  act  ought  to  have  been 
done,  and  in  no  other."  §§ 

Other  questions  on  this  subject  have  arisen,  which  have 
been  ably  considered  by  eminent  commentators,  to  whose 
works  the  reader  is  referred.  Illl 


*Rex  vs.  Combes,  1  Leach,  4th  ed.,  388;  1  East.  P.  C,  367;  1  Stark. 
Grim.  PL,  2d  ed.,  22,  23. 

f  1  Stark.  Crim.  PI.,  2d  ed.,  23. 

:{:  Commonwealth  vs.  Blanding,  3  Pick. ,  304. 

§  People  ««.  Griffin,  2  Barb.,  427  ;  Rex  ^•s.  Girdwood,  1  Leach,  4th  ed., 
142;  2  East.  P.  C,  1120  ;  Esser's  case,  2  East.  P.  C,  1125. 

II  People  vs.  Rathburn,  21  W.,  509. 

i  Reg.  vs.  Jones,  1  Den.  C.  C,  551 ;  Temp,  and  M.  270  ;  1  Eng.  L.  and 
Eq.,  533  ;  and  see  Adams  vs.  People,  1  Comst.,  173  ;  3  Denio,  190;  Reg.  vs. 
Leech,  Dears,  642 ;  7  Cox  C.  C,  100  ;   36  Eng.  L.  and  Eq.,  589. 

**  Griffin  vs.  The  State,  2G  Ga.,  493. 

ft  Reg.  vs.  Milner,  2  Car.  and  K.,  310. 

j^Rex  vs.  Clifton,  5  T.  R.,  498,  502. 

§§  Bishop's  Crim.  Procedure,  vol.  1,  §  53. 

III  Bishop's  Criminal  Procedure,  vol.  1,  §§54^67  inclusive;  \Miarton  on 
Criminal  Law,  §  210,  a-y  ;  lb.  §§  603,  604,  and  605  (7th  ed.). 


21 


a.  New  York  State. 

The  Revised  Statutes  of  this  State  contain  several  other 
sections  fonud  necessary  either  to  settle  mooted  questions, 
or  to  assist  or  facilitate  the  prosecution  of  criminals  or  in 
arriving  at  a  just  result. 

They  are  as  follows : 

Duelling  and  Prize-Figliting. 

Every  offender  under  the  duelling  act  "  may  be  indicted 
and  brought  to  trial  in  any  county  of  this  State,  which 
shall  be  designated  by  the  Governor  for  that  purpose,  and 
where,  in  his  opinion,  the  evidence  can  be  most  conven- 
iently obtained  and  produced."  * 

Any  person  who  leaves  this  State,  with  intent  to  elude 
any  law  thereof  against  duelling  or  prize-fighting,  or 
challenges  thereto,  or  to  do  any  act  forbidden  by  such  law, 
or  who  being  a  resident  of  this  State,  does  an  act  out  of  it, 
which  would  be  punishable  as  a  violation  of  such  a  law, 
may  be  indicted  and  tried  in  any  county  in  the  State. t 

Bigamy,   Polygamy. 

An  indictment  may  be  found  against  any  person  for 
a  second,  third,  or  other  marriage  herein  prohibited,  in 
the  county  in  which  such  person  shall  be  apprehended, 
and  the  like  proceedings,  trial,  judgment  and  conviction 
may  be  had  in  such  county,  as  if  the  offense  had  been  com- 
mitted therein.:}: 

Certain  Larcenies. 

In  respect  to  stolen  goods,  the  offender  may  be  indicted 
and  punished  in  any  county  where  he  carries  the  stolen 
goods  ;  as  he  is  guilty  of  stealing  them  in  every  place  where 
he  has  taken   them.     So  if  a   larceny  is  committed  abroad 

*  R.  S. ,  Part  iv. ,  chap.  i. ,  title  v.,  art.  i. ,  §  6. 
t  Code,  §  133. 
ilb.,  art.  ii.,  §10. 


22 

and  the  goods  are  brouglit  into  tliis  State,  tlie  offender  may 
be  indicted  in  any  county  into  which  the  goods  are  car- 
ried, in  the  same  manner  as  if  the  larceny  had  been  origin- 
ally committed  here.* 

Receiver  of  Stolen  Froijerty. 

In  the  cases  where  any  person  shall  be  liable  to  prose- 
cution as  the  receiver  of  any  personal  property  that  shall 
have  been  feloniously  stolen,  taken  or  embezzled,  he  may 
be  indicted,  tried  and  convicted  in  any  county  where  he 
received  or  had  such  property,  notwithstanding  such  theft 
was  committed  in  another  county,  t 

Certain  Burglaries  and  Robberies. 

"When  property  stolen  in  one  county  and  brought  into 
another  shall  have  been  taken  by  burglary  or  robbery,  the 
offender  may  be  indicted,  tried  and  convicted  for  such 
burglary  or  robbery,  in  the  county  into  which  such  stolen 
property  was  brought,  in  the  same  manner  as  if  such  bur- 
glary or  robbery  had  been  committed  in  that  county. '| 

Wounds  in  one  County  and  Death  in  another. 

When  any  mortal  wound  shall  be  given,  or  any  poison 
shall  be  administered,  or  any  other  means  shall  be  em- 
ployed, in  one  county,  by  which  a  human  being  shall  be 
killed,  who  shall  die  thereof  in  another  county,  an  indict- 
ment for  such  offense  may  be  found  in  the  county  where 
such  death  hapj)ened  ;  and  the  same  proceedings  shall  be 
had  thereon  in  all  respects,  as  if  the  means  by  which  such 
death  was  produced,  had  been  employed  and  used  in  the 
county  where  such  death  happened.§ 

*  Barb.  Cr.  Law,  p.  167,  2d  Ed. 

\  3  Park  Cr.  L  ,  473  ;  N.  Y.  R.  S.,  Part  iv.,  chap,  ii.,  title  iv.,  art.  ii.,  §  43. 

i  lb.,  §50;    2  Smith,  344;  3  Seld.,  295  ;  9  Wend.,  505. 

§  R.  S. ,  Part  iv. ,  chap.  ii. ,  title  iv. ,  art.  ii. ,  §  47. 


23 


Crimes    Committed   jxirtly    in    one    County   and   partly   in 

Another. 

When  a  crime  is  committed  partly  in  one  county  and 
partly  in  another,  or  the  acts  or  effects  thereof  constituting 
or  requisite  to  the  consummation  of  the  offense  occur  in  two 
or  more  counties,  the  jurisdiction  is  in  either  county.* 

Offenses  on  Board  Vessels,  etc. 

When  a  crime  is  committed  in  this  State  on  board  of  a 
vessel  navigating  a  river,  lake,  or  canal,  or  lying  therein  in 
the  course  of  her  voyage,  or  in  respect  to  any  portion  of  the 
cargo  or  lading  of  such  boat  or  vessel,  the  jurisdiction  is 
in  any  county  through  which,  or  any  part  of  which,  such 
river  or  canal  passes,  or  in  which  such  lake  is  situated,  or 
on  which  it  borders,  or  in  the  county  where  such  voyage 
terminates,  or  would  terminate  if  completed.f 

Crimes  Committed  on  Railway  Trains. 

When  a  crime  is  committed  in  this  State  in  or  on  board 
of  any  railway  engine,  train  or  car,  making  a  passage  or 
trip  on  or  over  any  railway  in  this  State,  or  in  respect  to 
any  portion  of  the  lading  or  freightage  of  any  such  railway 
engine,  train  or  car,  the  jurisdiction  is  in  any  county  through 
which,  or  any  part  of  which,  the  railway  train  or  car  passes, 
or  has  passed  in  the  course  of  the  same  passage  or  trip,  or 
in  any  county  wdiere  such  passage  or  trip  terminates,  or 
would  terminate  if  completed,^ 

Nuisances. 

Whenever  any  nuisance  shall  be  erected  or  continued,  on 
or  near  the  boundary  lines  of  the  counties  of  ]^ew  York, 
Westchester  and  Queens,  the  same,  and  the  persons  by 
whom  such  nuisance  shall  have  been  erected  or  continued, 
may  be  indicted  in  either  county  injuriously  affected  there- 

*  Code,  §  134. 
t  lb.,  §  136. 
t  lb.,  §  137. 


24 

by ;  and  thereupon  tlie  same  proceedings  sliall  be  had  and 
taken,  and  the  sentence  of  the  court  may  be  enforced  in  the 
same  manner,  as  if  the  said  nuisance  was  situated  within 
the  county  in  which  the  indictment  was  foimd.* 

Offenses  near  Boundary  of  a  County. 

When  an  oflfense  shall   be    committed   on    the  boundary 

of  two  counties,t  or  within  five  hundred   yards   of  such 

boundary,  an  indictment  for  the  same  may  be  found,  and  a 

•trial and  conviction  thereon  may  be  had  in  either  of  such 

cpunties-l 

Accessaries. 

An  indictment  against  an  accessary  to  any  felony,  may 
be  found  in  the  county  where  the  offense  of  such  accessary 
shall  have  been  committed,  notwithstanding  the  principal 
offense  was  committed  in  another  county ;  and  the  like 
proceedings  shall  be  had  thereon  in  all  respects,  as  if  the 
principal  offense  had  been  committed  in  the  same  county. § 

Lihel. 

When  a  crime  of  libel  is  committed  by  publication  in  any 
paper  in  this  State,  against  a  person  residing  in  the  State, 
the  jurisdiction  is  in  either  the  county  where  the  paper 
is  published,  or  in  the  county  where  the  party  libeled 
resides.         *         *         -h-         ^ 

Whenever  the  crime  of  libel  is  committed  against  a  per- 
son not  a  resident  of  this  State,  the  defendant  must  be 
indicted  and  the  trial  thereof  had  in  the  county  where  the 
libel  is  printed  and  published.  But  if  the  paper  does  not 
upon  its  face  purport  to  be  printed  or  published  in  a  par- 
ticular county  of  this  State,  the  defendant  may  be  indicted 
and  the  trial  thereof  had  in  any  county  where  the  paper  is 

*  Laws  1851,  ch.  415,  §1. 
f  Two  or  more  counties  by  the  Code,  §  135. 
^:  R.  S.,  Part  iv.,  ch.  ii.,  title  iv.    art.  ii.,  §  45. 
§Ib.,  §48. 


25 

circulated.  In  no  case,  however,  can  the  defendant  be 
indicted  for  the  printing  or  publication  of  one  libel  in  more 
than  one  county  of  this  State.* 

See  New  York  Revised  Statutes  concerning  other  provis- 
ions relating  to  libels,  as  to  the  county  wherein  they  may 
be  disposed  of.f 

JVJieii  a  Second  Prosecution  is  Barred. 

When  an  act  charged  as  a  crime  is  within  the  jurisdiction 
of  another  State,  territory  or  county,  as  well  as  within  the 
jurisdiction  of  this  State,  a  conviction  or  acquittal  thereof 
in  the  former,  is  a  bar  to  a  prosecution  or  indictment  there- 
for in  this  State.  I 

When  a  crime  is  within  the  jurisdiction  of  two  or  more 
counties  in  this  State,  a  conviction  or  acquittal  thereof  in 
one  county  is  a  bar  to  a  prosecution  or  indictment  therefor 
in  another.  § 

§  17.  Inferior  Districts. 

Within  the  county  or  district  where  the  offense  has  been 
committed,  there  may  be  magistrates  having  jurisdiction 
over  only  a  part  of  such  territory.  When  application  for  a 
warrant  is  made  to  any  such  inferior  officer,  the  complaint  is 
to  be  made  to  the  officer  having  jurisdiction  of  that  part 
wherein  the  offense  was  committed. 

*  Code,  §  138. 

f  Laws  1852,  ch.  165,  §§  1,  2,  3  and  4  ;  R.  S.,  Part  iv.,  chap,  ii.,  title  iv., 
art.  ii.,§§80,  81,  82  and  83. 
X  Code,  §  139. 
§  Code,  §  140. 


26 


CHAPTEK  IV. 

TO  WHOM  TO  APPLY  FOE  WAEKANT. 

Section  18.  Witlidrawal  of  Judicial  Powers  from  Executive 
Officers. 

19.  Central  and  Local  Authority. 

20.  Criminal  "Warrants  in  England. 

21.  Warrants    for  Criminal    Offenses    against  the 

United  States,  by  whom  issued. 

22.  New  York  State. 

23.  Questions  of  Jurisdiction. 

24.  Neglect  of  duty  by  Magistrate. 

§118.   Withdraival  of  Judicial  Potve7's  from  Executive  Offi^ceis. 

In  the  earlier  periods  the  administration  of  laws  is  in  the 
executive,  which  then  is  usually  the  sole  constituent  of  the 
government,  and  this  continues  to  be  the  characteristic  of 
every  nation  whose  advance  beyond  semi-barbarism  is 
arrested,  or  whenever,  from  a  state  of  partial  civilization  it 
returns  again  to  its  original  rude  condition. 

Such  was  the  primitive  administration  of  laws  in  the 
States  of  Greece  ;  the  king  or  chief  of  a  people  was  not 
merely  a  military  leader,  but  also  a  judge  ;  the  Roman  con- 
suls were  at  first  executive  and  judicial  officers,  and  in 
France  the  suzerains  or  feudal  lords  in  person  originally 
exercised,  in  addition  to  their  other  duties,  judicial  powers  ; 
and  this  is  now  the  case  in  oriental  autocracies,  with  only 
the  modification  that  where  the  territorial  jurisdiction  is 
large,  as  in  Turkey  or  Persia,  the  laws  are  administered  by 
deputies,  but  who,  in  like  manner  as  the  sovereign  of  a 
small  state,  each  within  his  respective  district,  performs 
the  functions  of  executive  and  judicial  officers. 


27 

Tlie  separation  of  tlie  judicial  from  executive  functions 
has  become  gradualh'  recognized  as  a  political  principle,* 
and  eacli  is  regarded  as  a  separate  department,  and 
together  with  the  legislative,  form  the  three  component 
branches  of  our  government. 

§  19.   Central   and  Local   Authority. 

In  England  great  hostility  has  in  the  past  been  exhibited 
towards  "  the  authority  of  the  Crown  in  the  higher  criminal 
jurisdiction.  The  extortions  of  the  judges  were  at  one  time 
regarded  as  a  greater  evil  than  the  perpetration  of  crime  in 
any  degree." 

"Local  obstruction  held  its  ground  against  central 
authority,  until  the  King's  Justices  were  excluded  from 
every  county  for  seven  years  at  a  time." 

The  Justices  in  Eyre,  traveling  as  Circuit  Justices,  dealt 
mainly  with  the  higher  offenses,  and  local  magnates 
disposed  of  the  lesser  infractions.  The  inferior  courts  were 
various,  embracing  the  Hundred  Court,  Manorial  Court 
and  Shire  Court. 

In  the  eleventh  century,  during  the  reign  of  Edward  the 
Confessor,  "England  saw  new  courts  of  law  spring  up, 
endowed  by  royal  favor  or  by  prescriptive  use,  with  judicial 
functions  of  the  most  diverse  nature,  over  territories  inex- 
tricably interwoven  and  confused.  Justice  was  no  longer  a 
public  trust,  but  a  private  property." 

In  the  first  year  of  the  reign  of  Edward  III.  (the  Confes- 
sor), A.  D,  1042,  good  and  lawful  men  in  each  county  were 
appointed  to  keep  and  maintain  the  peace.  Our  modern 
Justices  of  the  Peace  seem  to  have  been  developed  out  of 
these  ancient  guardians. 


fci' 


§  20.    Criminal  Warrants  in  England. 

A  warrant  may  be  granted  in  extraordinary  cases  by  the 
privy  council,  or  by  a  secretary  of  state,  or  by  either 
house    of    parliament.      And    at   common   law,  the    chief 

*  Americaxi  Cyclopedia,  vol.  5,  p.  428. 


28 

justice  or  any  puisne  judge  of  the  court  of  Queen's  Bench 
may  in  his  own  name  issue  a  warrant  for  apprehending  and 
briuo-ing  before  him  any  person  charged  on  oath  with 
felony  or  suspicion  of  felony.  Though,  to  avoid  trouble,  such 
a  warrant  may  direct  the  person  where  apprehended  to  be 
taken  before  a  justice  of  the  peace  to  be  by  him  examined 
and  proceeded  against  according  to  law,*  it  extends  all  over 
the  kingdom,  and  is  tested,  or  dated,  "  England,"  not  "  Ox- 
fordshire," "  Berks,"  or  other  particular  county. 

Most  commonly,  however,  a  warrant  is  granted  by  a 
justice  of  the  peace. 

§  21.   Offenses  against  the   United   States,  Warrants  for,   hy 
ivhoni   issued. 

For  any  crime  or  offense  against  the  United  States,  the 
offender  may,  by  any  justice  or  judge  of  the  United  States, 
or  by  any  justice  of  the  peace  or  other  magistrate  of  any 
of  the  United  States  where  he  may  be  found,  agreeably  to 
the  usual  mode  of  process  against  offenders  in  such  State 
and  at  the  expense  of  the  United  States,  be  arrested  and 
imprisoned  or  bailed,  as  the  case  may  be  for  trial  before 
such  Court  of  the  United  States  as  has  cognizance  of  the 
offense.f 

Commissioners  appointed  by  the  Circuit  Court  of  the 
United  States  to  take  acknowledgments,  affidavits,  etc., 
have  the  powers  that  any  justice  of  the  peace  or  magistrate 
may  exercise  as  above.  J 

From  the  foregoing  it  appears  that  magistrates  of  the 
States  have  cognizance  for  the  purposes  of  committing 
to  answer  before  United  States  Courts,  persons  charged 
with  offenses  against  the  United  States.  It  is  usual,  how- 
ever, to  refer  such  proceedings  to  the  United  States 
authorities. 

*  Chitty's  Cr.  L.,  1  vol.,  pp.  34  &  35. 
t  U.  S.  Statutes  at  Large,  vol.  1,  p.  91,  §  33. 

X  U.  S.  Statutes  at  Large,  vol.  5,  pp.  516  and  517,  §  1 ;  U.  S.  v.  Hand, 
6  McLean,  274;  U.  S.  Commissioner's  Manual  by  Roe,  p.  28,  et  seq. 


29 


§  22.    Neiu   York  State. 

In  tliis  State  the  ofl&cers  Avho  may  issue  warrants  are 
designated  by  the  Code,*  as  follows  : 

1.  Justices  of  the  Supreme  Court  ; 

2.  Judges  of  any  City  Court  ; 

3.  Judges  of  County  Courts,  and  Special  County  Judge  ; 
4  The  City  Judge  of  the  City  of  New  York,  and  the 

Judge  of  the  Court  of  General  Sessions  in  the  City 
and  County  of  New  York  ; 
6.  The  Justices  of  the  Peace  ; 

6.  The  Police  t  and  other  Special  Justices,  appointed  or 

elected  in  a  city,  village,  or  town  ;  and 

7.  The  Mayors  and  Recorders  of  cities.  % 

The  foregoing  persons  have  power  to  issue  process  for 
any  criminal  offense  committed  within  their  jurisdiction 
respectively. 

The  higher  courts  might,  under  ordinary  circumstances, 
"be  justified  in  refusing  to  entertain  complaints  for  warrants, 
while  inferior  courts  can  readily  be  applied  to.  It  is,  at 
least,  the  practice  to  confine  application  for  warrants  to  the 
latter. 

§  23.  Jurisdictional  Questions. 

A  justice  of  the  peace  has  no  power  to  issue  process  for 
a  crime  committed  in  another  county,  though  the  offender 
be  in  the  county  where  the  justice  resides. § 

*  Code,  §  147. 

f  In  the  City  of  New  York,  "no  alderman,  district  court  justice,  or  other 
city  officer,  not  being  a  judicial  officer,  shall  exercise  any  power  or  authority 
appertaining  to  any  police   justice  of  that  city." — Laws  of  1873,  chap.  538, 

§1- 

X  This  provision  is  in  harmony  with  the  political  principle  hereinbefore 
referred  to— the  delegation  of  judicial  duties  only  to  judicial  officers,  and 
had  "mayors  of  cities"  been  omitted,  it  would  have  been  fully  respected 
by  the  Code. 

§  Semble,  5  Hill,  164. 


30 


The  judiciary  of  one  State  lias  no  jurisdiction  of  offenses 
committed  in  another  State,  although  the  offender  may  be 
within  the  limits  of  its  jurisdiction,  except  on  requisition 
to  surrender  to  the  State  wherein  offense  has  been  com- 
mitted, for  trial."^ 

If  the  justice  acquires  jurisdiction  over  the  subject- 
matter  and  the  person,  he  is  not  responsible  in  an  action 
for  an  error  of  judgment.'!' 

A  recital  in  a  warrant  for  the  arrest  of  a  party,  where 
the  magistrate  would  be  guilty  of  a  breach  of  his  official 
oath  if  the  recital  were  intentionally  false,  is  presumptive 
evidence  of  the  truth  of  such  recital ;  and  it  lies  upon  the 
party  denying  the  jurisdiction  which  depends  on  that  fact, 
to  show  that  the  recital  is  false. | 

Where  a  magistrate  has  jurisdiction,  and  acts  within 
that  jurisdiction,  he  is  not  liable,  in  an  action  of  trespass, 
for  mere  error  in  judgment. 

If  he  acts  from  malicious  or  improper  motives,  or  in  bad 
faith,  in  some  cases  he  may  be  liable  to  another  form  of 
action.  But  if  he  has  no  jurisdiction  to  do  the  act  com- 
plained of  he  is  liable,  and  if  that  appears  upon  the  face 
of  the  papers,  as  a  general  rule,  all  concerned  are  tres- 
passers.§ 

The  test  of  an  act  being  judicial  or  ministerial  is,  whether 
the  justice  is  entitled  to  withhold  his  assent  if  he  thinks 
fit,  or  whether  he  can  be  compelled,  by  mandamus  or  rule, 
to  do  the  act  in  question.  || 

*  People  vs.  Wright,  2  Cai.,  213;  People  vs.  Gardener,  2  Johns.,  477; 
People  vs.  Schenck,  2  Johns.,  479. 

t  Stewart  vs.  Hawley,  21  W.,  555  ;  1  Brod.  &  Bing.,  432;  Mills  vs.  Callet> 
6  Bing.,  85  ;    3  Maule  &  Selw.,  411  ;  8  W.,  462;    11  W.,  95;  19  W.,  61,  62. 

X  Bradstreet  vs.  Ferguson,  21  W.,640  ;  Vosburgh  vs.  Welch,  11  Johns.  R., 
175;  Wallsworth  vs.  McCullough,  10  Johns.,  R.,  97 ;  Payne  t)S.  Barnes,  5 
Barb.,  469. 

§  Pratt  ««.  Hill,  IG  B.,  303. 

II  Staverton  vs.  Ashbnrton,  4  El.  and  Bl.,  531. 


31 


§  24.  Magistrate' s   Neglect   of  Duty. 

Mere  good  feeling  and  upright  intention  in  a  magistrate 
will  be  no  defense  if  lie  has  been  guilty  of  a  neglect  of  his 
duty,  nor  will  the  fact  of  his  having  acted  under  the  advice 
of  others  be  any  defense  for  him.  The  question  is,  whether 
he  did  all  that  he  knew  was  in  his  power  and  which  could 
be  expected  from  a  man  of  ordinary  prudence,  firmness, 
and  activity.* 

*  Rex  m.  Pinney,  vol.  1,  Neville  and  Manning's  Mag.  case.  p.  307. 


32 


CHAPTEE  V. 

COMPLAINT.* 

The  complaint  herein  treated  of  excludes  all  such  as  are 
made  to  an  arresting  officer,  to  procure  an  arrest  without 
a  warrant,  or  to  a  grand  jury  to  cause  an  indictment  to  be 
found,  and  embraces  only  the  application  for  an  arrest 
when  made  to  a  magistrate. 

Section  25.  Oral  Complaint. 

26.  Written  Complaint. 

§  25.   Oral  Complaint. 

The  statute  in  this  State  speaks  of  applications  for  war- 
rants in  these  words  : 

"  Whenever  complaint  shall  be  made  that  a  criminal 
offense  has  been  committed,"  etc.f 

It  does  not  say  in  what  form  it  shall  be  made,  nor  what 
it  shall  contain,  neither  is  there  any  condition  or  restric- 
tion attached.  It  may,  then,  be  a  bare  verbal  statement, 
"  that  a  criminal  offense  has  been  committed,"  without 
charging  am^  particular  person  and  based  solely  on  informa- 
tion received  by  the  person  preferring  the  complaint,  desig- 
nated, as  we  have  seen,  the  complainant. 

Such  simple  oral  communication  to  a  magistrate,  how- 
ever, sets  in  motion  powerful  and  effective  legal  machinery, 
which  at  once  passes  beyond  the  control  of  the  informant 
and  under  the  direction  of  public  officials. 

It  will  be  also  observed,  from  the  wording  of  the  statute, 
that  the  complaint  need  not  be  under  oath. 

The  complaint  may  be  regarded  as  being  a  mere  announce- 
ment to  the  court  of  a  desire  for  an  inquiry  to  determine 

*  Called  "information"  by  the  Code,  §  145. 
"f  R.  S.,  Part  iv. ,  chapter  ii.,  title  ii.,  §  27. 


38 


wlietlier  a  warrant  shall  issue  on  the   matters  thereafter 
to  be  presented. 

Tlius  looked  upon,  it  will  be  understood  why  the  statute 
so  meagrely  refers  to  the  complaint  and  passes  on  to 
what  shall  follow  a  complaint  being  made — the  examination 
by  the  magistrate  of  the  comj^lainant,  and  any  witnesses 
who  may  be  produced  by  him  on  oath,*  the  foundation 
proper  for  the  warrant. 

§  26.    Written  Complaint. 

When  the  formalit}'  of  a  written  complaint  is  observed,  it 
is  usual  to  embrace  within  it  the  statement  of  facts  which 
the  magistrate  would  elicit  by  an  examination  of  the  com- 
plainant and  his  witnesses,  so  that  by  adopting  the  evidence 
in  the  complaint  the  magistrate  need  make  no  further 
examination,  but  proceed  at  once  to  swear  the  witnesses  and 
issue  his  warrant.  Since  the  subject  of  a  written  complaint 
will  be  better  understood  after  taking  up  the  "  preliminary 
examination,"  the  presentation  of  the  remaining  part  of  it 
is  reserved  for  another  and  later  part  of  this  book  (§  34). 

In  "Wisconsin,  the  statute  requires  the  magistrate  to 
reduce  the  complaint  to  writing,  and  cause  the  same  to  be 
subscribed  by  the  complainant.f 

The  statutes  of  Arkansas  and  Texas  provide  that  "  the 
complaint  shall  be  made  in  writing,  and  upon  oath.  X 

*  K.  S.,  Part  iv.,  chap,  ii.,  title  ii.,  §  27. 

t  R-  S.  of  Wis.,  ch.  145,  §  2;  R.  S.  of  Ohio,  ch.  65,  p.  538. 

t  R.  S.  of  Ark,  ch.  52,  §  20  ;  Hartleys  Dig.,  art.  703. 

3 


EXAMINATION    BEFORE   WARRANT. 


Chapter  I.  Divers  Preliminary  and  Incidental  Questions. 
II.  What   is   to   be    elicited   on    the   Preliminary 
Examination. 


CHAPTER  I. 

DIVERS     PRELIMINARY     AND     INCIDENTAL     QUESTIONS. 

Section    27.  Distinguished     from     Examination     after 
Arrest. 

28.  Duty  of  the  Magistrate  to  Investigate. 

29.  Oath. 

30.  Witnesses  for  Complainant. 

31.  Fees  of  Witnesses. 

32.  Detention  of  Witnesses. 

33.  Whether  Examination  to  be  in  Writing. 

34.  Written  Complaint. 


§  27.  Distinguished  from  Examination  after  Arrest. 

There  are  two  examinations  provided  for  before  a  final 
commitment — the  one,  preliminary  to  the  warrant  of  arrest, 
and  the  other  to  ascertain  whether  the  party  arrested 
should  be  held  on  the  accusation  made  against  him.  When 
the  arrest  is  made  without  a  warrant  there  is,  of  course,  no 
preliminary  examination  ;  the  first  notice  the  magistrate  has 
that  an  ofi"ense  is  alleged  to  have  been  committed  is  by  the 
arraignment  of  a  prisoner. 


35 

lu  both  examinations  it  must  appear  that  an  offense  has 
been  committed,  in  that,  after  arrest,  there  shall  be  in  ad- 
dition probable  cause  to  believe  the  prisoner  to  be  the 
guilty  party;  by  the  Code  "reasonable  ground."* 

§  28.  Duty  of  the  Magistrate  to  Investigate. 

It  is  not  only  the  right  but  the  duty  of  the  magistrate  to 
investigate  criminal  accusations. 

The  complaint  need  accuse  no  particular  person  by  name, 
but  it  is  sufficient  if  it  be  charged  that  a  criminal  offense 
has  been  committed,  no  matter  by  whom. 

One  of  the  very  objects  of  the  preliminary  inquiry  may 
be  to  ascertain  the  name  of  the  perpetrator  as  well  as  the 
other  particulars  of  the  alleged  offense.  To  this  end  wit- 
nesses are  to  be  produced  by,  that  is,  on  the  part  of,  the 
complainant,  who  may  have  process  therefor,  and  disobe- 
dience may  be  punished  as  for  a  contempt. 

The  first  step  to  be  taken  is  to  examine  the  complainant 
on  oath,  manifestly  though  only  if  he  claims  to  know  '^^J- 
thing  personally  about  the  charge.  How  much,  then,  must 
be  proved  by  his  examination  ?  Enough  only  to  furnish 
good  grounds  to  believe  that  further  investigation  w^ill  lead 
to  the  discovery  of  crime. t 

§29.    Oath. 

The  preliminary  examination  of  the  complainant  and  his 
witnesses  must  be  under  oath. 

An  unsupported  oath,  except  with  certain  class  privileges, 
was  not  receivable  as  evidence  until  its  introduction  as  such 
through  the  influence  of  the  Roman  law,  in  which  its  im- 
portance was  overwhelming.  It  required  the  renewal  of 
the  study  of  the  civil  law  in  the  twelfth  century  to  give  the 
practice  a  position  entitled  to  respect.  | 

*  §  150. 

f  People  vs.  Hicks,  15  B.,  158  ;  Wilson  vs.  Robinson,  6  How.  Pr.  Rep.,  110. 

X  Superstition  and  Force  by  Lea-,  20,  21. 


36 

Oaths  Avere  estimated  by  tlieir  externals  and  not  by 
themselves,  and  guarantees,  such  as  religious  ceremonies 
and  superstitious  observances  accompanying  the  oath,  were 
required. 

There  were  also  formerly  various  kinds  of  oaths,  such  as 
promissory,  assertory,  decisory,  and  calumukc  causa,  and 
besides  these  the  greater  and  lesser  oaths. 

According  to  the  laws  in  this  State  every  person  believing 
in  the  existence  of  a  Supreme  Being,  who  will  punish 
false  swearing,  shall  be  admitted  to  be  sworn,  if  other- 
wise competent ;  *  and  no  witness  is  to  be  incompetent 
on  account  of  his  religious  belief ;  t  but  a  witness  is  not 
shielded  from  a  cross-examination  as  to  his  religious  be- 
lief ;  X  nor  are  courts  prevented  from  inquiring  what  are  the 
peculiar  ceremonies  observed  by  any  witness  in  swearing.§ 

The  usual  mode  of  administering  oaths  now  practiced,  by 
the  person  who  swears  laying  his  hand  upon  and  kissing 
the  Gospels,  shall  be  observed  in  all  cases  in  which  an  oath 
may  be  administered  according  to  law.  || 

Every  person  who  shall  desire  it  shall  be  permitted  to 
swear  in  the  following  form  :  "  You  do  sAvear  in  the  pres- 
ence of  the  ever  living  God  ;"  and  while  so  swearing  such 
]Derson  may  or  may  not  hold  up  his  hand,  in  his  discretion. IF 

Every  person  who  shall  declare  that  he  has  conscientious 
scruples  against  taking  any  oath  or  swearing  in  any  form, 
shall  be  permitted  to  make  his  solemn  declaration  or 
affirmation  in  the  following  form  :  "You  do  solemnly,  sin- 
cerely and  truly  declare  and  affirm."  ""-'" 

Whenever  the  court  before  which  any  person  shall  be 
offered  as  a  witness  shall  be  satisfied  that  such  person  has 
any  peculiar  mode  of  swearing  connected  with,  or  in  addi- 

*  R.  S.,  Part  iii.,  ch.  vii.,  title  iii. ,  art.  ix.,  §87. 

t  Const,  of  1846,  art.  L,  §3. 

X  Supreme  Ct.,  1858,  Stanbro  m.  Hopkins,  28  Barb.,  265. 

§  R.  S.,  Part  iii.,  ch.  vii.,  title  iii.,  art.  ix.,  §  89. 

II  lb.,  §82. 
nib.,  §83. 
**  lb.,  §  84. 


tiou  to,  the  laying  of  liis  hand  upon  the  Gospels  and  kiss- 
ing the  same,  which  is  more  solemn  and  obligatory  in  the 
opinion  of  such  person,  the  Court  may,  in  his  discretion, 
adopt  such  mode  of  swearing  such  person." 

Every  person  believing  in  any  other  than  the  Christian 
religion  shall  be  sworn  according  to  tlie  peculiar  ceremonies 
of  his  religion,  if  there  be  any  such  ceremonies,  instead  of 
any  of  the  modes  hereinbefore  prescribed. t 

If,  on  being  questioned,  the  witness  reply  that  the  usual 
form  of  the  oath  will  be  binding  on  his  conscience  it  would 
be  irrelevant  and  unnecessary  to  examine  him  further  as  to 
his  belief. 

"The  form  of  administering  the  oath  is  in  every  case  that 
which  most  forcibly  impresses  on  the  swearer  the  obliga- 
tion of  the  oath,  or  in  other  words  is  most  binding  on  his 
conscience."  X 

In  questioning  infants  of  tender  years,  it  is  usual  to  in- 
quire as  to  their  religious  knowledge  and  whether  they  be- 
lieve in  God  and  in  future  punishment ;  but  this  is  usually 
to  test  their  capacity.  § 

The  opposite  party  is  entitled  to  have  them  preliminarily 
examined  as  to  their  knowledge  of  the  nature  of  an  oath.  li 

A  person  intoxicated  ought  not  be  sworn,  nor  permitted 
to  testify.  And  the  judge  may  decide  from  his  own  view 
upon  the  state  of  the  witness  in  that  regard. 

In  the  modern  Penal  Code  of  China,  oaths  are  neither 
required  nor  admitted  in  judicial  proceedings,1l  and  in  this 

*■  B.  S.,  Part  iii. ,  chap,  vii.,  title  iii.,  art.  ix.,  §  85. 

fib.,  §86. 

X  Amer.  Cyclopaedia,  vol.  xii.,  p.  568.  Therefore  a  .Jew  may  be  sworn 
on  the  Pentateuch,  or  Old  Testament,  with  his  head  covered  (Strange,  821, 
1113);  a  Mahommedan  on  the  Koran  (1  Leach  Cr.  ('as.,  54);  a  Gentoo, 
by  touching  with  his  hand  the  foot  of  a  Brahmin  or  priest  of  his  religion ; 
a  Brahmin,  by  touching  the  hand  of  another  such  priest  (Wils.,  549);  a 
Chinaman,  by  breaking  a  china  saucer  (1  Carr.  &  M. ,  248);  2d  vol.,  Bouvier's 
Law  Diet.,  p.  248. 

§  Jackson  ^'s.  Gridley,  18  Johns.,  98. 

II  People  w.  McXair,  21  Wend.,  608. 

%  Lea  gives  as  his  authority  for  the  above,  Staunton  Penal  Code  of  China, 
p.  364. 


38 

respect  leads  the  more  enliglitened  countries,  who  probably 
are  destined  sooner  or  later  to  follow  the  example  thus 
intelligently  set. 

The  inherent  strength  of  [testimony  running  the  gauntlet 
of  the  rules  of  evidence  and  the  test  of  cross-examination 
now  determines  its  value. 

The  oath,  whatever  may  have  been  the  necessity  for  it 
under  ancient  surroundings,  is  now  deprived  of  most  of  its 
support.  Its  continued  use  without  strong  reasons  theref ( »r 
is  calculated  to  induce  that  irreverence  which  must  be 
engendered  by  superfluous  appeals  to  Divinity. 

§  30.   Witnesses  for  Complainant. 

A  warrant  can  issue  on  the  uncorroborated  examination 
of  the  complainant,  except  in  certain  cases  (ante,  §  11),  when 
he  is  in  possession  of  sufficient  facts  therefor. 

It  often  happens  that  witnesses  are  necessary  to  supply 
defects  in  the  complainant's  examination,  in  order  to  make 
a  case. 

These  witnesses  are  produced  either  by  the  complainant 
or  by  process  from  the  court. 

A  subpoena  must  be  substantially  in  the  following 
form  : 

"  In  the  name  of  the  People  of  the  State  of  New  York  : 

"  To  A.  B. 

"You  are  commanded  to  appear  before  C.  D.,  a  justice  of 
the  peace  of  the  town  of 

[or  as  the  case  may  be]  at  [naming  the  place]  on  [stating 
the  day  and  hour],  as  a  witness  in  a  criminal  action  prose- 
cuted by  the  People  of  the  State  of  New  York  against 
E.  F. 

"Dated  at  the  town  of  ,  [as  the  case 

may  be],  the  day  of  ,  18     . 

"  G.  H.,  Justice  of  the  Peace  "  [or  as  the  case  may  be].* 

If  books,  papers,  or  documents  be  required,  a  direction 

*  Code,  i^  612. 


39 

to  the  following  effect  must  be  contained  in  the  subpoena  : 
"  And  you  are  required  also  to  bring  with  you  the  following 
(describing  intelligently  the  books,  papers,  or  documents 
required).'^ 

Every  court  has  the  right  to  issue  and  compel  obedience 
to  its  subpoenas  incidental  to  its  power  to  hear  and  de- 
termine issues. 

A  magistrate  before  whom  an  information  is  laid,  may 
issue  subpoenas  for  witnesses  wathin  the  state,  either  for 
the  people  or  defendaut.t 

Witnesses  summoned  and  refusing  to  attend  or  to  answer 
are  punishable  as  for  a  criminal  contempt,  in  the  manner 
provided  in  sections  8  and  9,  N.  Y.  Code  of  Civil  Pro- 
cedure. + 

The  refusal  of  a  witness  to  produce  papers  acknowledged 
to  be  in  his  possession,  for  the  reason  that  it  w^ould  be  a 
breach  of  his  privilege  as  attorney,  is  assuming  the  right 
of  determining  for  himself  the  question  of  privilege,  which 
is  not  his  province,  but  that  of  the  court  ;  and  his  refusal 
to  produce  the  papers  is  a  contempt.  $ 

A  peace  officer  must  serve,  in  his  count}',  city,  town  or 
village,  as  the  case  may  be,  any  subpoena  delivered  to  him 
and  make  a  written  return  stating  the  time  and  place  of 
service.     Any  other  person  though  may  make  the  service. 

A  subpcena  is  served  by  delivering  it  or  by  showing  it 
and  delivering  a  copy  thereof  to  the  witness  personally. 

"  No  person  is  obliged  to  attend  as  a  witness  before  a 
court  or  magistrate  out  of  the  county  where  the  witness 
resides  or  is  served  with-  the  subpoena,  unless  the  judge  of 
the  court  in  which  the  crime  is  triable,  or  a  judge  of  the 
Supreme  Court,  or  a  county  judge,  or,  in  the  City  of  New 


*  Code,  g  618. 

fib.,  §608. 

t  lb  ,  §  619;  see  also  R.  S.,  Part  iii.,  ch.  hi.,  title  ii.,  art.  i.,  §  10,  subd. 
3,5;  Id.,  ch.  ii.,  title  iv.,  art.  xiii.,  §374;  Id.,  ch.  viii.,  title  xiii.,  §  1, 
subd.  0. 

§  Mitchell's  case,  12  Abb.  Pr.,  249. 

II  Code,  §  015. 


40 


York,  the  Kecorcler  or  City  Judge,  or  Judge  of  the  General 
Sessions  of  that  city,  upon  an  affidavit  of  the  prosecutor  or 
District  Attorney,  or  of  the  defendant  or  his  counsel,  stat- 
inn-  that  he  believes  that  the'  evidence  of  the  witness  is 
material  and  his  attendance  at  the  examination  or  trial 
necessary,  shall  indorse  on  the  subpoena  an  order  for  the 
attendance  of  the  witness." 

A  writ  of  habeas  corpus  for  the  purpose  of  securing  the 
testimony  of  any  prisoner  who  may  be  detained  in  any  jail 
or  prison  within  this  State,  will  be  granted  by  any  justice 
of  the  Supreme  Court  or  any  officer  authorized  to 
perform  the  duties  of  such  justice,  upon  the  application  of 
a  party  to  any  proceeding  before  any  officer  or  body  who 
may  be  authorized  to  examine  witnesses  in  any  suit  or 
proceeding.t 

A  convict  in  prison  may  be  brought  before  court  by 
habeas  corjDus,  and  examined  as  a  witness,  upon  trial  of  a 
fellow  prisoner,  for  or  against  him,  for  an  offense  committed 
in  prison.  And  the  accused  prisoner  may  be  brought  before 
the  court  by  habeas  corpus,  t 

The  district  attorney  of  every  county  shall  have  power 
to  issue  subpoenas  for  witnesses  in  support  of  any  prosecu- 
tion, to  appear  at  any  court,  without  the  seal  of  such  court ; 
and  every  such  subpoena,  subscribed  by  the  district  attor- 
ney issuing  the  same,  shall  be  as  valid  and  effectual  as  if 
the  seal  of  the  court,  at  which  any  witness  named  therein 
is  required  to  appear,  had  been  affixed  thereto. § 

The  sheriff,  when  it  is  necessary  to  send  subpoenas  into 
a  foreign  county,  shall  serve  the  same  and  make  the  proper 
return.  ' 

*  Code,  §  618. 

f  R.  S. ,  Part  iii. ,  chap,  ix.,  title  i. ,  art.  i. ,  §^  3  and  5. 

X  2  L.,  1874,  chap.  460,  §g  150,  I'A. 

§  R.  S. ,  Part  Iv. ,  chap,  ii.,  title  iv. ,  art.  ii. ,  §  63. 

II  L.  1836,  oh.  506,  §  4. 


41 


§  31.  Fees  of  Witnesses. 

It  is  not  necessary  to  pay  or  tender  fees  to  witness  in 
any  criminal  case.* 

Poor  witnesses  and  those  coming  from  out  of  the  county, 
attending  on  behalf  of  the  people,  to  be  paid  a  reasonable 
sum  for  expenses.t 

Wheneyer  any  magistrate  shall  issue  any  subiDoena  in  any 
criminal  proceeding  or  trial,  he  shall  indorse  upon  the 
back  thereof  a  memorandum  showing  whether  the  same 
was  issued  for  the  peojjle  or  for  the  prisoner  ;  and  eyery 
officer  or  other  person  who  shall  insert  the  names  of 
witnesses  in  a  subpoena  issued  for  the  people,  intended 
for  the  prisoner,  with  intent  thereby  to  deceiye  any  person^ 
or  to  obtain  any  pay  as  for  seryices  in  subpoenaing  wit- 
nesses for  the  people,  shall  be  deemed  guilty  of  a  misde- 
meanor ;  and  no  such  magistrate  shall  charge  or  be  allowed 
for  more  than  six  subpoenas  in  any  one  criminal  case,  nor 
shall  any  board  of  superyisors  allow  any  charge  for  issuing 
or  serying  any  subpoena  in  any  criminal  case  or  proceeding 
issued  or  seryed  on  behalf  of  a  defendant.;'; 

§  32.  Detention  of  Witnesses. 

It  appears  to  be  the  common  law  that  a  witness  may  be 
compelled  to  enter  into  a  recognizance  to  appear  at  a 
future  day  to  giye  eyidence  in  behalf  of  the  State,  and  in 
case  of  refusal  he  may  be  committed  to  prison.  § 

Such  also  is  the  statute  law  of  seyeral  States.  The  wit- 
ness was  not,  howeyer,  at  common  law,  rec^uired  to  procure 
any  surety.  His  own  recognizance  was  all  that  was  exacted. 
To  require  him,  as  has  sometimes  been  done,  to  procure 
sureties  in  addition,  is  certainly  an  extraordinary  exercise 
of  legislatiye  power.  II 

*  R.  S.,  Part  iv. ,  ch.  iL.  title  iv. ,  art.  ii. ,  §  65  ;   Id.,  title  iii. ,  art.  iii. ,  i;  37. 

t  Code,  g  616. 

X  L.,  1845,  ch.  180,  §  18. 

§  1  Chit.  Cr.  Law,  7G. 

U  4  Bl.  Com.,  Wend,  ed.,  '396. 


42 

By  the  laws  of  this  State,  the  magistrate  shall,  in  all 
cases  of  felony,  bind  by  recognizance  the  prosecutor  and 
all  the  material  witnesses  against  a  jn-isoner  committed 
for  trial  to  appear  at  the  next  court  having  cognizance  of 
the  offense  and  in  which  the  prisoner  may  be  indicted.* 

And  if  the  magistrate  be  satisfied,  hy  due  proof  (by 
the  Code  "  on  oath  "),  that  there  is  good  reason  to  believe 
that  any  such  witness  will  not  fulfill  the  conditions  of  such 
recognizance,  unless  surety  be  required,  he  may  order  such 
witness  to  enter  into  a  recognizance  with  such  sureties  as 
he  shall  deem  meet  for  his  appearance  at  such  court.t 

Should  it  satisfactorily  appear  by  the  oath  of  the  witness, 
or  of  any  other  person,  that  the  witness  is  unable  to 
procure  sureties,  he  may  be  forthwith  conditionally  exam- 
ined on  behalf  of  the  people,  in  the  manner  and  with  the 
effect  provided  in  the  Code.J 

But  the  prosecutor  or  an  accomplice  to  the  crime  cannot 
be  so  examined.  § 

The  Constitution  of  this  State  provides  that  "witnesses 
shall  not  be  unreasonably  detained."  11 

§  33.    Whether  Examination  to  he  in  Writing. 

The  Eevised  Statutes  do  not  require  that  there  shall  be 
either  a  written  complaint  or  a  w^ritten  examination  of  the 
complainant  and  his  witnesses  prior  to  the  issuance  of  the 
warrant. 

The  Code,  however,  provides  that  the  magistrate  must 
take  the  depositions  of  the  informant  or  prosecutor  and 
any  witnesses  he  may  produce,  in  writing. H 

Independent   of   any  statute,  it   is    claimed   by   several 

*  R.    S.,    Part  iv.,   chap,    ii.,    title   ii.,  §   21.     The    Code   provides   that 
recognizance  may  be  required  in  any  case  uijder  penalty  of  $100.     §  215. 
t  R.  S.,  Part  iv.,  chap,  ii.,  title  ii.,  §  22;  Code,  §  216  ;  lb.,  §  219. 
XVo. 

§  lb.,  §  220. 
\  Const.,  art.  i.,  §5. 
^  §  148. 


43 

writers,  that  it  is  the  duty  of  tlie  magistrate  to  take  all 
charges  in  writing." 

However  that  may  be,  a  variety  of  considerations  recom- 
mend the  practice  of  taking  down  all  complaints  and  exam- 
inations in  writing,  among  which  are  the  following  : 

It  will  insure  greater  system  and  accuracy  in  the  subse- 
quent proceedings, 

It  will  enable  the  justice,  in  case  the  complainant  or  any 
of  his  witnesses  are  prosecuted  for  their  doings  in  the  mat- 
ter, to  show  distinctly  what  they  testified  to, 

It  will  facilitate  his  defense  if  the  justice  is  himself  pros- 
ecuted, by  enabling  him  to  exhibit,  at  once,  an  information 
on  oath  authorizing  the  warrant,  and  giving  him  jurisdic- 
tion, t 

A  complaint  separate  and  distinct  from  the  examination 
seems  to  be  unnecessary.  They  may  be  combined  in  the 
same  instrument.  '\. 

§  34.  ]Vriiten   Complaint. 

We  have  just  seen  that,  in  this  State  at  least,  a  conlplaint 
separate  and  distinct  from  the  examination  seems  to  be 
unnecessary,  and  that  both  may  be  combined  in  the  same 
instrument.  Instead  of  the  examination  embracing  the 
complaint,  the  complaint,  when  in  writing,  is  usually  made 
to  include  the  examination ;  that  is,  to  present  sufficient 
facts  and  circumstances  to  make  any  further  examination  by 
the  magistrate  unnecessary,  who  can,  after  swearing  the 
parties  to  the  complaint,  adopt  it  also  as  his  own  examina- 
tion ;  and  he  usually  does  if  sufficiently  comprehensive. 

But  since  the  magistrate  has  the  power  to  make  the 
examination  of  the  complainant  himself,  he  may  reject  any 
written  complaint  made  to  him  and  in  person  conduct  the 
examination,  or  by  a  further  examination  into  matters  not 

*  1  Arch.  Cr.  Pr.  and  PL,  page  103  (note),  8th  ed.;  1  Ch.  Cr.  L.,  34. 

t  2  Stark.  Ev.  429,  note  a  ;  2  Strange,  710;  8  East  R.,  113;  2  T.  R.,   225. 

i  1  Arch.  Cr.  Pr.  and  PL,  p.  104,  note,  8th  ed. 


44 

presented  by  the  written  complaint  add  to  it  or  modify  it, 
according  to  the  facts  elicited.  Therefore  the  magistrate 
should  insist  on  the  complaint  being  sworn  to  before  him, 
in  order  that  he  may  see  the  complainant  and  his  witnesses, 
if  he  has  any,  and  to  enable  any  further  information  to  be 
obtained  which  may  be  deemed  to  be  proper  or  necessary  to 
determine  whether  a  warrant  should  issue. 

The  statute  requiring  the  magistrate  issuing  the  warrant 
to  make  an  examination  under  oath,  would  seem  to  require 
him  to  refuse  to  issue  a  warrant  on  information  sworn  to 
before  any  other  person  than  himself,  the  proceeding  being 
in  this  respect  unlike  applications  for  civil  orders  of  arrest, 
wherein  the  affidavits  are  usually  made  elsewhere  than  in 
the  court  where  presented  for  process,  a  practice  which  may 
be  criticised  for  not  furnishing  that  protection  to  defend- 
ants proposed  to  be  apprehended  which  is  thrown  around 
persons  accused  in  criminal  proceedings. 


•45 


CHAPTEE   II. 

WHAT  IS  TO  BE  ELICITED  ON  THE   PRELIMINARY  EXAMINATION  ? 

Section  35.  Parties. 

36.  Time. 

a.  Statutes  of  Limitation. 

37.  Place. 

38.  Statement  of  the  offense. 

39.  Intent. 


§  35.  Farties. 

The  names,  ages,  addresses  and  occupations  of  the  com- 
plainant and  his  witnesses  should  be  ascertained  at  the 
outset  of  their  examination,  for  reasons  that  are  apparent. 

This  is  now  necessary  under  the  Code.* 

Under  the  head  complainant  [ante,  Part,  i.,  chap  ii.),  the 
questions  affecting  parties  prosecuting  are  treated  of  to 
some  extent.  Those  relating  to  the  defendant  more 
properly  come  in  later,  when  we  consider  his  rights. 

§  36.  Time. 

Care  should  be  taken  in  stating  the  time  ;  it  should  not  be 
open  to  the  objection  of  being  either  repugnant,  uncertain, 
or  impossible. 

Formerly,  greater  strictness  with  respect  to  dates  Avas  re- 
quired, especially  in  cases  of  felony.t 

The  day  and  year  on  which  facts  are  stated  in  the  indict- 
ment, or  other  pleading,  are  not  in  general  material ;  and 
the  facts  may  be  proved  to  hare  occurred  upon  any  other 
day  previous  to  the  preferring  of  the  indictment. :J:  The 
defendant  should  be  reasonably  protected  against  surprises, 

*  g  204,  sub.  i. 

t  2  Hawks,  c.  25,  §  77  ;  2  Hale,  177,  178. 

X  9  Cowen,  054 ;   Code,  i^  280. 


46 

and  be  enabled  to  plead  a  judgment  rendered  in  bar  to  a 
second  proceeding  for  the  same  offense. 

It  is  a  rule  of  pleading  applicable  to  indictments,  tliat 
every  traversable  fact  must  be  alleged  with  time  and  place.  ■• 
It  will  not  be  sufficiently  certain  to  state  the  month  and 
omit  the  year.t 

It  will  be  better  to  adhere  to  the  ancient  practice  of 
using  the  English  language  exclusively,  but  the  intro- 
duction of  numeral  characters,  and  the  abbreviating  of 
"  A.  D.,"  for  "  the  year  of  our  Lord,"  will  not  create  an 
essential  defect. :J:  Otherwise,  however,  if  the  exact  tenor  or 
fac-simile  of  any  instrument  is  to  be  set  forth.  § 

The  use  of  words  at  length,  WxU  tend  to  greater  certainty 
and  be  less  liable  to  alterations  than  figures.  :! 

The  day  and  year  need  not  be  expressly  stated  ;  if  they 
can  be  gathered  from  the  whole  examination  it  will  be 
sufficient.^ 

When  time  is  material  as  an  element  of  the  crime,  or 
if  it  is  to  be  proved  by  matter  of  record, ""  it  must  be  ac- 
curately stated,  tt 

The  same  offense  should  not  be  alleged  to  have  been 
committed  on  different  days.++ 

But  if  a  day  certain  is  charged,  the  words  "  divers  other 
days,"  might  be  rejected  as  surplusage. §§ 

Laying  the  time  of  committing  the  offense  "  on  or  about " 
a  specified  day,  is  ordinarily  sufficient.  |||| 

*  State  vs.  La  Bore,  26  Vt.,  765. 

t  Com.  m.  Griffin,  3Cush.,  52-3. 

X  State  vs.  Reed,  30  Maine,  489. 

15  Berrian  m.  State,  2  Zabris.,  9. 

I  ]  Greene's  Iowa  Rep.,  418;    State  fs.  Raiford,  7  Porter,  101. 
%  Gill  m.    People,   10  N.  Y.  S.  C,  3  Hun.,  187;   See  Werner  m.  State,  51 
Geo.,  426  ;  People  vs.  Gregory,  30  Mich.,  371. 

**  Wharton's  Cr.  L.,  §  271,  275,  2269. 

it  State  m.  Caverly,  51  X.  H.,  446. 

XX  state  vs.  Hendricks,  C.  &  N.,  369. 

§§  Coolv  vs.  state,  11  Ga.,  53;  Peoples*.  Adams,  17  Wend.,  475;  State 
vs.  May,  4  Dev.-,  328. 

111!  Pasch.,  Dig.  ^  1611. 


47 

In  case  the  precise  date  cannot  be  given,  instead  of  say- 
ing "  on  or  about  tlie  tenth  day  of  March,  in  the  year  of 
our  Lord,  eighteen  hundred  and  seyentv-nine,"  the  doubt 
might  better  be  confined  absolutely  to  the  day,  by  stating 
the  year  and  month  with  certainty,  and  then  using  the 
words,  "on  or  about"  only  in  connection  with  the  day  of  the 
month,  thus  : 

"  In  the  year  of  our  Lord  eighteen  hundred  and  seyenty- 
nine,  month  of  March,  and  on  or  about  the  tenth  day 
thereof." 

The  presentation  of  the  charge,  when  by  information, 
differs  materially  from  that  by  indictment.  In  the  fatter 
case  the  accuser  is  somewhat  of  an  impersonal  character  ; 
in  the  former,  the  witnesses  for  the  prosecution  are  sworn 
and  must  be  as  accurate  as  possible  in  giving  the  time  and 
other  circumstances  of  the  olfense,  and  cannot  indulge  in 
broad  statements.  The  references,  therefore,  that  have  been 
introduced  here  respecting  indictments  have  no  strict 
applicability  to  informations,  but  are  given  to  illustrate  the 
spirit  in  wliicli  the  elements  constituting  crime  are 
regarded. 

a.  Statutes  of  Limitation. 

The  offense  should  be  laid  on  a  day  not  barred  by  the 
statute  of  limitation.  If  the  date  be  blank,  the  proceeding 
would  be  open  to  the  objection  that  it  may  be  barred  by 
the  statute.* 

3Iurder. 

There  is  no  limitation  of  time  within  which  a  prosecution 
for  murder  must  be  commenced.  It  may  be  commenced  at 
any  time  after  the  death  of  the  person  killed.f  This  is  ap- 
plicable to  an  accessory  before  the  fact.+  A  conviction  for 
assault,  etc.,  is  no  bar  to  an  indictment  for  murder.  § 

*  state  vs.  Johnson,  33  Tex.,  9G  ;  but  see  People  vs.  Santvoord,  9  Co-wen, 
654  ;   State  rs.  Sam,  2  Dev. .  507. 

t  Code,  §  141  ;  R.  S.,  Part  iv.,  chap,  ii.,  title  iv. ,  art.  ii.,  §  37. 
+  People  vs.  Mather,  4  W.,  229. 
§  Bums  vs.  People,  1  Park.,  182. 


48 


Other  Crimes. 

An  indictment  for  a  crime  other  tlian  murder  must  be 
found  within  five  years  after  its  commission,  except  where 
H  less  time  is  prescribed  by  statute.* 

Exception. 

If,  when  a  crime  is  committed,  the  defendant  be  out  of 
the  State,  the  indictment  may  be  found  within  the  term 
heroin  limited  after  his  coming  within  the  State  ;  and  no 
time,  during  which  the  defendant  is  not  an  inhabitant 
of,  or  usually  resident  within  the  State,  is  part  of  the 
limitation.'!' 

It  is  not  necessary  that  the  defendant  should  have  been 
intermittingiy  absent  from  the  jurisdiction.  If  he  flies  from 
a  prosecution,  mere  occasional  returns  will  not  start  the 
statute  afresh.:]: 

If  the  case  is  within  the  exception  of  the  statute,  it  is 
now  generally  required  to  state  the  time  correctly  and  then 
aver  the  exception.! 

When  Begins  to  Bun. 
The  statute  of  limitation  begins  to  run  on  the  day  of 
the  commission  of  the  offense,  but  crimes  may  be  instan- 
taneous or  continuous.  With  instantaneous,  such  as  killincf 
and  arson,  the  statute  begins  with  the  consummation  ;  with 
continuous  crimes,  such  as  the  carrying  of  concealed  weap- 
ons, use  of  false  weights,  public  nuisances,  il  etc.,  enduring 
after  the  period  of  consummation  or  continuing,  it  begins 
with  the  ceasing  of  the  criminal  act  or  neglect.l  The 
statute  is  retrospective.** 

*  Code,  §  142. 

f  ib..    §  143;   R.  S.,  Part  iv. ,  chap,  ii.,  title  iv.,  art.  ii.,  §  37. 
t  U.  S.  m.  Wright,  5  Cr.  C.  C.  R.,  IIG. 
§  Wharton's  Cr.  L.,  §446,  and  cases  there  cited. 
II  People  vs.  Cunningham,  1  Den.,  524. 
l"  Wharton's  Cr.  L.,  §449. 

**  Com.  m.  Hutchinson,  2  Pars.,  453  ;  U.  S.  vs.  Ballard,  3  McLean,  469  ; 
but  see  Martin  vs.  State,  24  Tex.,  61. 


49 


When  Indictment  is  Found. 

All  indictment  is  found  within  the  meaning  of  the  statute 
of  limitations  when  it  is  duly  presented  by  the  grand  jury 
in  open  court,  and  there  received  and  filed.* 

§  37.  Place. 

How  definitely  shall  the  locality  of  the  commission  of 
the  offense  be  stated  ?  The  place  of  the  perpetration  of 
the  crime  must  be  within  the  jurisdiction  of  the  court 
applied  to  for  process.  The  particular  place  need  not  be 
proved.f  It  is  proper,  however,  to  fix  it  within  as  small 
bounds  as  may  be  conveniently  designated  in  some 
maimer  that  will  be  at  once  recognized.  The  accused 
ought  to  be  informed  when  practicable  of  the  precise 
place  of  the  alleged  occurrence,  that  he  may  be  the 
better  prepared  to  demonstrate  his  innocence.  Care,  how- 
ever, must  be  taken  not  to  make  any  mistake  or  to  be  vague, 
or  to  designate  the  locality  by  a  name  not  legally  assigned 
or  commonly  applied.  Better  be  more  general  in  the  de- 
scription than  unsafely  venture  to  particularize.  A  designa- 
tion of  a  territory  as  extensive  as  the  jurisdiction  of  the 
court  will  sustain  a  warrant,  but  the  magistrate,  however, 
for  obvious  reasons,  should  insist  on  as  small  a  division  or 
subdivision  of  land  as  can  be  positively  ascertained. 

In  London,  on  account  of  its  size  and  population,  it  is 
always  necessary  to  lay  the  offense  either  in  some  ward  or 
parish  within  its  limits.  | 

In  the  City  of  New  York  the  practice  is  to  charge  the 
ward  as  a  part  of  the  venue,  thus  :  "  In  the  first  ward  of  the 
City  of  New  York  ; "  in  New  Orleans  to  name  the  parish. 
The  same  practice  obtains  elsewhere  in  large  cities.§ 

*  Code,  §  144. 

t  4  Bla.  Com.  30G;  Hawk.  b.  2,  c.  25,  §  84,  c.  46,  §§  181,  182  ;    East  P. 
C.  125;  Holt,  584;  2  Hale,  179,  244,  245. 
X  1  Wharton's  Crim.  Law,  §  277. 
§  lb.,  §  280. 


50 

Where  there  are  distinct  judicial  districts  in  the  county 
and  the  proceeding  is  in  one  of  the  district  courts  it  is  not 
sufficient  that  the  caption  names  the  county."" 

The  district  must  be  named,  else  the  plea,  that  the 
offense  is  not  shown  to  have  been  committed  within  the 
jurisdiction  of  the  court,  will  be  successful.!- 

In  all  cases,  generally,  where  a  statute  makes  a  special 
locality  essential,  such  locality  must  correctly  appear  in 
the  complaint  or  indictment.  :|: 

The  allegation  of  time  and  })lace  should  be  repeated  to 
every  material  fact  Avhich  is  issuable  or  triable,  the  words 
"  then  and  there  "  being  proper  therefor.  § 

§  38.  Sfatemoit  of  the  Offense. 

To  state  a  crime  its  constituent  parts  should  be  pre- 
sented, in  order  to  enable  the  magistrate  to  arrive  at  the 
conclusion  that  a  criminal  offense  has  been  committed.  The 
complainant  should  submit  the  facts  only,  l!  the  justice  nuist 
make  the  proper  deduction.  A  statement  of  a  legal  result 
is  bad.*r 

If  the  offeiise  is  one  at  common  law,  its  rules  will  define 
the  facts.  In  offenses  against  statutes,  by  the  statutes 
creating  the  offense.*"^  Information  and  belief  or  either  will 
be  insufficient,  facts  and  circumstances  should  be  stated. ft 

The  Sixth  Amendment  to  the  Constitution  of  the  United 
States  provides  that,  in  all  criminal  prosecutions,  the 
accused  shall  enjoy  the  right  "  to  be  informed  of  the  nature 
and  cause  of  the  accusation." 


*  State  m.  Adams,  2  Battle's  Dig. ,  729. 

t  McBride  vs.  The  State,  10  Humph.,  615,  and  see  People  vs.  Barrett,  1 
Johns.,  66;   State  vs.  G.   S.,  1   Tyler,  295;    State  I'S.  Jones,  4  llalst.,  357. 

t  1  Wharton's  Crim.  Law,  §  281. 

§  State  vs.  Roberts,  26  Maine,  268;  State  vs.  Cotton,  4  Post.,  143  ;  The 
State  vs.  Johnson,  Walkers  R. ,  392.  For  further  illustrations  on  this  sub- 
ject see  1  Arch.  C.  Pr.  and  PI.  pages  262.  263,  264,  265 

11  Code,  ^  149. 

•1  Stra.  1226;  Hawk.,  b.  2,  c.  25,  §57;  Bac.  Abr.,  Indictment,  G.  1. 
**  1  Arch.  Cr.  Pr.  and  PL,  p.  265,  8th  ed. 
ft  Hinman  cs.  Wilson,  2  How.,  27;   Campbell  cs.  Mcl'ormick,  1  How.,  251. 


51 


"  This  provision  applies  as  Avell  to  the  prelimiiiarv  })ro- 
ceedings  for  arrest  before  indictment  as  to  the  indictment 
itself."* 

In  other  constitutions  it  is  expressed  that  the  offense 
must  be  "fully  and  plainly,  substantially  and  formally 
described." 

This  is  said  to  be  "  the  dictate  of  natural  justice  as  well 
as  a  doctrine  of  common  law.  The  description,  whether  in 
an  indictment  or  information  or  other  proceeding,  ought  to 
contain  all  that  is  material  to  constitute  the  crime  set  forth 
with  precision  and  in  the  customary  forms  of  law."t 

The  application  for  an  order  of  arrest  in  a  civil  proceed- 
ing being  analagous  to  that  for  a  criminal  warrant,  the 
safeguards  that  have  been  declared  to  be  necessary  in  civil 
suits  must  not  be  lost  sight  of  in  criminal  actions.  Greater 
caution,  if  anything,  is  to  be  observed  in  the  latter  cases, 
because  of  one  reason,  at  least,  and  that  is  that  there  is  no 
bond  or  undertaking  given  by  the  complainant  as  a  secu- 
rity to  the  accused  and  operating  as  a  check  on  malicious 
prosecutions. 

To  the  numerous  decisions  respecting  the  sufficiency  of 
affidavits  to  obtain  orders  of  arrest,  the  reader  is  therefore 
referred  for  many  valuable  suggestions. 

General  charges,  must  be  accompanied  by  specific  acts 
and  circumstances  to  have  any  value  whatever,!"  vague  and 
uncertain  declarations  will  be  defective.  § 

The  statement  of  the  offense  should  be  positive,  certain, 
and  not  repugnant.il 

Statidorij  Offenses. 

It  depends  on  the  manner  of  an  offense  being  stated  in  a 
statute  as  to  whether  it  will  be  sufficient  to  follow  its  words  ; 

•"  Matter  of  Peter  Coleman,  Blatchford,  J.  (1878),  U.  S.  Cir.  Court. 

f  Greenleaf  on  Evidence.     Vol.  3,  §  10. 

X  1  Arch.  Cr.  Pr.  and  PL,  p.  266,  8th  ed. 

§  Whiteside  vs.  People,  Breese  4;  3  M.  &  S.,  379. 

II  1  Arch.  Cr,  Pr.  and  PL.  pp.  275,  276. 


if  every  fact  necessary  to  constitute  the  offense  is  charged, 
or  necessarily  implied  by  following  the  language  of  the 
statute,  the  adoption  of  its  phraseology  will  be  sustained, 
otherwise  not. 

The  point  has  been  made  that  the  precise  words  of  the 
statute  must  be  used.  There  is  great  authority  and  resting 
on  preferable  ground,  for  the  position  that  the  charge 
should  be  so  described  with  clearness  and  certainty  as  to 
bring  it  substantiaUy  within  the  provisions  of  the  statute. 

If  the  facts  constituting  a  statutory  offense  are  properly 
stated,  the  name  is  unnecessary,  a  wrong  name  would  be 
surplusage.^'" 

City  Ordinances. 

The  number  of  the  section  of  a  city  ordinance  should  be 
given  and  the  provision  violated  substantially  set  forth. t 

Negativing  Exceptions. 

It  is  immaterial  what  precise  w^ords  are  emj)loyed  to 
negative  the  exceptions  if  they  clearly  and  explicitly  accom- 
plish that  purpose. 

The  charge  must  be  shown  affirmatively  to  be  unaffected 
by  any  exception  contained  in  the  same  clause  of  the  act 
which  creates  the  offense,  or  in  the  enacting  clause,  creat- 
ing the  offense. 

But  if  an  exception  or  proviso  be  in  a  subsequent  clause 
or  statute,  or  although  in  the  same  section,  yet  if  it  be  not 
incorporated  with  the  enacting  clause  by  any  words  of  refer- 
ence, it  is  in  that  case  matter  of  defense  for  the  other  party, 
and  need  not  be  negatived  by  the  prosecution.  X 

As  to  particular  offenses,  and  the  essential  ingredients 
thereof,  and  what  offenses  and  defendants  may  be  joined, 
the  numerous  text-books  extant  will  furnish  abundant  in- 
formation. 

*  1  Arch.  Cr.  Pr.  and  PI.,  8th  ed.,  p.  268. 

t  Keeler  m.  Milledge,  4  Zab.,  142. 

X  1  Arch.  Cr.  Pr.  and  PL,  8th  ed.,  p.  270, 


53 


§  39.  Intent 

Criminal  intent  will  be  presumed  in  many  cases  and  need 
not  1)6  proved.     Such  as  when  the  act  is  in  itself  unlawful.'^ 

But  when  conduct  is  indifferent  in  itself  and  becomes 
criminal  only  from  the  intent,  the  intention  then  becomes 
material,  and  it  is  as  necessary  to  allege  and  prove  it  as 
any  of  the  facts  and  circumstances  of  the  case.t 

*  1  Arch.  Cr.  Pr.  and  PI.,  p.  274  (note),  Sth  ed. 
fib.,  p.  273  (note). 


I^'^^IE^T     III. 

THE     WARRANT 


Chapter  I.  When  Warrant  to  be  Issued. 
II.  Requisites  of  a  Warrant. 

III.  The  Arrest. 

IV.  Search  Warrants. 


CHAPTER  I. 

S  40.    When  Warrant  to  he  Issued. 

We  recall  the  fact  that  until  within  the  last  few  centuries, 
the  peril  which  surrounded  a  person  charged  with  crime 
was  very  great.  The  chances  of  escape  of  an  accused  per- 
son, owing  to  the  character  of  the  criminal  proceeding,  were 
quite  limited. 

As  will  be  shown  later  on  there  was  no  preliminary 
examination  before  the  trial  with  power  on  the  part  of  the 
examining  officer  to  discharge  on  the  failure  of  proof  of 
the  guilt  of  the  accused.  Such  examination,  even  after  its 
establishment  for  many  years,  was  simply  had  to  perpet- 
uate the  testimony  against  the  suspected  offender,  and  not 
designed  as  a  hearing  by  which  the  alleged  criminal  might 
be  released. 

The  trial  itself  was  based  on  "  the  theory  that  superhuman 
powers  would  save  the  innocent.  The  defendant  was  not 
convicted  by  proof,  but  he  stood  condemned  and  was 
permitted  to  clear  himself  only  by  a  miracle,  fraud  or  cor- 
ruption furnishing  a  result  accepted  as  the  required 
mediation  of  supernatural  agencies.     This,  with  the  com- 


00 

bat,  were  the  only  media  of  escape  for  a  prisoner  after  the 
decline  of  the  compurgatorial  oath." 

It  naturally  suggested  itself  that  ere  a  person  should  be 
regarded  as  accused,  some  corroboration  or  security  should 
be  exacted  from  the  complainant. 

The  right  of  a  prisoner  in  a  number  of  cases  to  challenge 
his  accuser  to  single  battle,  operated  as  a  powerful  check 
to  malicious  prosecutions. 

Added  to  this,  the  Anglo-Saxon  laws  rec[uired,  except  in 
trivial  cases,  a  "  fore  oath  "  from  the  accuser,  and  to  this 
was  sometimes  required  the  addition  of  conjurators,  their 
oath  having  reference  solely  to  the  purity  of  intentions  on 
the  part  of  the  accuser. 

The  character  or  position  of  the  person  to  be  accused, 
often  obliged  the  accuser  to  be  properly  sustained  before 
the  defendant  would  be  called  upon  to  answer. 

In  Denmark,  in  criminal  cases,  it  appears  that  no  man 
could  compel  another  to  submit  to  a  trial  before  the  Naevn^'' 
unless  he  either  brought  witnesses  in  support  of  his  charge 
or  swore  to  its  truth  by  an  oath  called  the  "  as  woren  eth," 
and  it  was  the  province  of  the  juries  to  decide  upon  the 
preliminary  proofs  whether  they  would  allow  the  trial  to 
proceed  or  not.  In  this  proceeding  we  may  trace  a  faint 
resemblance  to  our  own  grand  jury  system,  the  principle  in 
both  being  the  same,  namely,  that  a  man  ought  not  to  be 
put  upon  his  trial  unless  there  is  a  prima  facie  case  of  guilt 
made  out  against  liim.t 

The  probability  that  an  innocent  person  will  now  secure 
his  discharge  in  passing  through  the  carefully-devised  legal 
proceedings  designed  to  protect  the  guiltless,  takes  away 
from  an  arrest  most  of  the  peril  that  attached  to  it  in  past 
times. 

*  Xaevn  were  the  proper  jurors  or  sworn  judges  of  Denmark,  being  so 
called  from  Xaevn  "  to  name."  They  existed  in  verj' ancient  times  und  long 
anterior  to  any  of  the  extant  Danish  Codes,  by  one  authority  placed  beto-ecii 
the  years  7oO  and  TCO,  and  by  another  claimed  to  be  of  much  older  date. — 
Forsyth's  Trial  by  Jury,  Amer.  ed.,  by  J.  A.  Morgan,  page  »'3,  note. 

f  Forsyth's  Trial  by  Jury,  pages  24  and  25. 


56 


Aside  from  the  danger  of  conviction  that  will  always 
exist  to  create  anxiety  in  the  mind  of  an  innocent  defendant, 
the  suffering  that  is  entailed  on  him  by  his  restraint  or 
confinement,  continues  the,  necessity,  though  not  to  such  an 
extent  as  formerly,  for  proceeding  with  care  and  caution 
toward  the  apprehension  of  accused  persons. 

Therefore,  owing  to  the  fact  that  it  is  the  settled  practice 
not  to  convict  on  the  uncorroborated  evidence  of  an  accom- 
plice,* the  magistrate,  though  he  has  the  right  to  issue  'a 
Avarrant  on  the  complaint  of  an  accomplice  unsupported  by 
other  proof,  since  he  is  not  an  incompetent  witness,  should 
prudently  exhibit  the  greatest  care  before  jjlacing  an  ac- 
cused so  charged  under  restraint.  The  circumstances, 
though,  may  be  such  that  the  narrative  of  the  accomplice 
will  carry  conviction  with  it,  and  the  jury  may,  if  they 
please,  act  upon  the  evidence  of  a  partlcepfi  crimhiis  with- 
out any  confirmation  of  his  statement.'!' 

Since  the  Code,  however,  before  a  conviction  can  be  had 
an  accomplice  must  be  corroborated.  % 

Among  the  Eomans,  it  was  the  rule  that  the  evidence  of 
an  approver  should  be  entirely  rejected ;  no  man's  freedom 
or  reputation  could  be  endangered  by  the  malice  of  one  who 
confessed  himself  a  criminal.  § 

In  determining  whether  there  is  sufiicient  evidence  to 
authorize  the  issuing  of  a  warrant,  a  justice  acts  judicially.  || 

A  warrant  should  not  be  issued  on  bare  suspicion,!  and  a 
statement  of  the  facts  upon  information  and  belief  is  insuf- 
ficient, if  the  attendance  of  the  person  from  whom  the 
information  was  derived  can  be  procured.*- 


*  Greenleaf,  vol.  1,  p.  427,  §  381. 

t  lb.,  §  ^80. 

X  %  399. 

§  Pike's  Hist,  of  Crime  in  Ecgland,  vol.  i.,  p.  17. 

II  Horton  vs.  Auchmoody,  7  Wend.,  200  ;  19  Wend.,  5(5  ;  1  Den.,  537,  540 
and  590  ;  3  Den.,  117  ;  1  Kern.,  573. 

T  4  Inst.,  176  ;  see  3  Hawk.  P.  C,  84. 

**  Supreme  Ct.,   18G1,  Comforts.  Fulton,  13  Abb.   Fr.,  270.     People   vs 
Pratt,  22  Hun. ,  p.  300. 


57 

The  Revised  Statutes  read,  "  if  it  shall  appear  from  such 
examinatiou,"  referring  to  that  before  issuing  the  warrant, 
"that  any  criminal  offense  has  been  committed,  the  magis- 
trate shall  issue  a  proper  warrant."  ^' 

The  Code  provides  that  if  the  magistrate  be  satisfied 
from  the  depositions  of  the  prosecutor  and  his  witnesses, 
that  the  crime  complained  of  has  been  committed  and  that 
there  is  reasonable  ground  to  believe  that  the  defendant 
has  committed  it,  he  must  issue  a  warrant  of  arrest,  t 

From  this  it  appears  that  the  preliminary  examination 
shall  disclose  sufficient  to  make  it  appear  that  a  criminal 
offense  has  been  committed.  The  facts  must  be  eli-.-ited 
which  lead  to  that  conclusion.  All  the  facts  need  not  be 
drawn  out  after  a  jjrima  facie  case  is  disclosed,  as  that  will 
protect  the  magistrate ;  but  he  should  make  the  preliminary 
examination  sufficiently  exhaustive,  to  embrace  an  inquiry 
into  those  circumstances  forming  the  usual  defenses  made 
to  the  charge  presented.  The  responsibility  of  the  com- 
plainant in  answering  to  a  contingent  suit  for  malicious 
prosecution  may  well  be  considered  in  determining  tlie 
thoroughness  of  the  examination.  It  must  rest  in  the  sound 
discretion  of  the  justice  as  to  how  far  he  shall  proceed.  The 
nature  of  the  case,  character  of  the  complainant  and  de- 
fendant, their  relationship  at  any  time,  and  any  delay  in 
making  the  complaint  are  matte"i-s  that  prudence  will  re- 
quire to  be  considered  in  the  development  of  the  case.  It 
should  be  the  aim  to  examine  first  as  to  the  essential 
elements  of  the  crime,  and  then  into  such  incidental 
circumstances  as  are  calcalated  to  throw  light  on  the  case. 
Inquiry  conducted  in  the  nature  of  a  cross-examination 
after  the  direct  questions  are  put  to  elicit  the  prima  facie 
case,  will  not  be  amiss.  Motive  is  an  important  factor  as 
affecting  the  value  of  the  evidence,  and  if  not  apparent 
should  be  probed  after. 

A   careful   magistrate    will   save    himself    the    arresting 


*  R.  S.,  Part  iv.,  chap,  ii.,  title  ii.,  §  3. 
t  §§  14!)  and  l.'.O. 


;)8 

power  and  tlie  accused  mucli  time  and  labor,  and  the 
government,  therefore,  useless  expense,  by  as  exhaustive  an 
examination  as  a  wise  and  circumspect  discretion  will 
suo-"-est ;  and,  what  is  more  important  than  all,  the  accused 
the  mortification  and  often  serious  consequences  flowing 
from  an  arrest. 

The  foregoing  considerations  are  not,  however,  to  be  re- 
garded as  encouraging  reluctance  in  issuing  warrants,  nor  as 
favoring  the  interposition  of  obstacles  between  the  com- 
plainant and  the  warrant,  but  are  stated  in  the  interest  of 
prudence  and  care.  Whenever  it  appears  that  an  offense 
has  been  committed,  the  magistrate  should  act  with  prompt- 
ness and  courage. 

The  policy  of  the  law  is  against  a  reckless,  careless,  or  in- 
sufficiently considered  exercise  of  the  right  to  arrest,  the 
liberty  of  every  one  being  sought  to  be  jealously  guarded 
by  every  proper  safeguard.  But  it  must  also  be  borne  in 
mind  that  it  is  a  part  of  the  duty  of  the  magistrate  to 
unearth  crime,  to  act  in  a  measure  as  a  prosecuting  officer, 
and  not  indifferently  to  turn  away  applicants  for  process 
without  adequate  investigation,  at  least  to  such  an  extent 
as  to  leave  no  room  in  his  mind  for  a  reasonable  doubt  as 
to  the  course  for  him  to  pursue. 


59 


CHAPTER  II. 

REQUISITES    OF   A    WARRANT. 

Section  41.  It  Must  be  Directed. 

42.  Recite  the  Accusation. 

43.  Designate  the  Person  to  be  Arrested. 

44.  Whether  to  have  a  Seal. 

45.  Other  Features. 

46.  Justice  acts  Ministerially. 


§  41.  It  3Iust  be  Directed. 

This  is  an  essential  part  of  every  warrant.  At  common 
law  the  warrant  might  be  directed  to  some  indifferent 
person,  who  is  not  an  officer,"^''  but  now  it  should  be  to  an 
officer,  the  sheriff,!'  or  the  constable^  of  the  county  or  town, 
or  to  some  individual  officer.  § 

There  are  a  number  of   statutes  empowering  policemen 


*Barb.  Cr.  Law,  459  ;  1  Chitty's  Cr.  L.,  38. 

f  Shire— reeve  ;  a  keeper  or  steward  of  the  shire  or  county.  'I'he  Enghsh 
sheriff,  the  sheriff  of  the  common  law,  has  succeeded  to  almost  all  the 
authority,  judicial  and  ministerial,  that  the  earl  or  count  (comes)  had,  and  ia 
the  custodian  of  the  county  and  the  conservator  of  the  king's  peace.  The 
sheriff  in  the  United  States  has  duties  almost  wholly  ministerial,  and  his 
jurisdiction  extends  over  counties  or  parishes  (Louisiana),  as  in  England  it 
does  over  shires  and  counties,  synonymous  words  corresponding  nearly  to  a 
province  of  Prussia  or  a  department  of  Fnince.     Amer.  Cyclop,  title  Sheriff. 

A  sheriff  has  power  to  appoint  as  many  deputies  as  he  thinks  proper.  R. 
S.,  Part  i. ,  chap,  xii.,  art.  v.,  §  73. 

X  The  constable  in  England  and  America  is  an  inferior  common  law  ex- 
ecutive. In  England  he  is  the  constable  of  the  hundred,  usually  called  the 
high  constable,  or  the  constable  of  the  vill  or  tithing,  called  the  petty  con- 
stable or  tithing  man.  Special  constables  are  also  sworn  in  by  the  justices  on 
special  occasions,  where  a  breach  of  the  peace  is  feared  or  exists.  Constables 
serve  the  process  of  justices  of  the  peace,  and  also  act  generally  as  conserva- 
tors of  the  peace.     Amer.  Cyclop.,  title  Constable. 

§  Abbott  vs.  Booth,  51  Barb.,  546. 


60 

to  execute  warrants ;   this   is   the    case  especially  in  large 

cities. 

The  Code  in-ovides  that  the  warrant  shall  be  directed  to 
a  peace'  officer,*  and  he  is  defined  to  be  a  sheriff  of  a  county, 
or  his  deputy,  or  a  constable,  marshal,  or  policeman  of  a 
city,  town,  or  village,  t 

Magistrates  should  never  resort  to  the  practice  of  direct- 
ing the  warrant  to  a  common  person  if  an  officer  can  be 
conveniently  found  to  execute  it,  inasmuch  as  such  a  person 
cannot  be  compelled  to  make  service  or  be  punished  in 
case  of  refusal.:!: 

A  warrant  addressed  to  the  proper  officer,  and  to  an  indi- 
vidual by  name,  who  was  not  an  officer,  is  erroneous,  and 
confers  no  authority  upon  the  individual  to  make  the  arrest. 
A  doubt  was  expressed  whether  it  might  not  be  law- 
fully done  when  no  officer  was  at  hand  to  perform  the 
service,  and  that  fact  was  expressed  in  the  warrant.  § 

A  mere  permission,  authorization  or  license,  without 
requiring  and  commanding  it,  would  afford  no  justification 
to  one  executing  a  warrant.  The  words  of  the  Ee  vised 
Statutes  are  "commanding  the  officer."  Those  of  the 
Code,  "  commanding  the  arrest  of  the  defendant."  'I 


§  42.  Recite  the  Accusation. 

At  common  law  the  recital  of  the  offense  in  the  warrant 
was  not  essential. "l  The  object  of  the  recital  is  to  enable 
the  defendant  to  see  whether  the  offense  be  bailable,  so 
that  he  may  appear  prepared  with  bail  and  with  any 
defense  that  is  admissible  on  the  return  of  the  warrant.*" 

*  §  153. 
t  §  154. 

Jld.,  51  Barb.,  551. 

§  Commonwealth  vs.  Foster,  1  IMass.  K..  488. 

II  §  151. 
.  ^  Atchinson  ts.  Spencer,  9  Wend.,  03  ;   19  Id.,  56. 

-"*  1  Chitty's  Crim.  Law,  33,  34,  41  and  42 ;  Hawk.,  B.  2,  ch.  13,  §  25  ;  Bac. 
Abr.,  Trespass,  574  D.  3. 


61 

The  Revised  Statutes  liave  altered  the  common  law  in 
this  respect.  The  warrant,  when  issued  to  preserve  the 
peace,  must  recite  the  complaint."  When  issued  for  the 
apprehension  of  offenders  must  recite  the  accusation.f 

According  to  the  Code,  "it  must  state  an  offense  in  re- 
spect to  which  the  magistrate  has  authority  to  issue  the 
warrant.  "I 

It  is  never  necessary  to  state  the  evidence  by  which  the 
charge  is  supported  ;  §  neither  need  the  particulars  of  the 
charge  be  given,  as  required  in  an  indictment.  II 

Larceny,  whether  grand  or  petit,  is  a  criminal  offense  ; 
thus  the  statute  is  satisfied  despite  the  omission  to  give 
the  A'alue  of  the  property  taken,  and  the  warrant  is  never- 
theless valid,  and  the  magistrate  of  the  county  in  which  the 
person  accused  is  arrested,  will  be  authorized  to  regard  the 
offense  as  petit  larceny. 

An  apparent  and  merely  clerical  error,  incapable  of  mis- 
leading, comes  within  the  equity  of  the  provision  of  the 
Revised  Statutes,  "  that  no  indictment  shall  be  deemed 
invalid  by  reason  of  any  defects  or  imperfections  in  mat- 
ter of  form  which  do  not  tend  to  the  prejudice  of  the 
defendant."  IT 

§  43.  Designate  the  Person  to  he  Arrested. 

A  practice  existed  in  England  until  1763  to  issue  what 
was  known  as  general  warrants,  under  which  persons  were 
arrested  without  previous  evidence  of  their  guilt  or  iden- 
tification of  their  persons.  In  that  year  this  one  of  the 
remnants  of  a  jurisprudence  which  had  favored  prerogative 
at  the  expense  of  liberty,  which  was  continued  on  the 
ground  of  usage,  received  its  death  blow  from  the  boldness 

*  Part  IV.,  chap,  ii.,  title  1,  §  3,  6th  ed.,  vol.  3,  p.  996. 
f  Part  IV.,  chap,  ii.,  title  3,  §3,  6th  ed.,   p.   998;   Blythe   vs.   Tompkins, 
Abb.  Prac,  Vol.  2,  p.  473. 
t  %  152. 

§  Pratt  vs.  Bogardus,  49  Barb.,  89. 
II  1  Vol.  Bishop's  I  rim.  Proc,  §  228. 
^  Payne  vs.   Barnes,  5  Barb. ,  465. 


62 

of  Wilkes,  who,  not  seeing  his  name  on  the  warrant  under 
which  it  was  proposed  to  arrest  him,  declared  it  "  a  ridicu- 
lous Avarrant  against  the  whole  English  nation,"  which,  on 
the  question  being  brought  before  the  Court  of  Kings 
Bench,  was  declared  by  Lord  Mansfield  to  be  illegal,  saying, 
"It  is  not  fit  that  the  judging  of  the  information  should  be 
left  to  the  discretion  of  the  oflicer.  The  magistrate  should 
judge  and  give  certain  directions  to  the  officer,  and  that  no 
degree  of  antiquity  can  give  sanction  -to  an  usage  bad  in 
itself."  * 

The  process  for  the  arrest  of  an  individual  must  so 
describe  the  person  intended  that  the  officer  would  know 
whom  to  arrest,  and  the  party  vhose  liberty  was  threatened 
might  know  whether  he  was  bound  to  submit,  f  It  is  not 
sufficient  that  the  person  in  fact  intended  was  arrested.:}: 
A  recital  iu  the  w^arrant  cannot  be  availed  of  to  aid  the 
officer  in  justifying  the  arrest.  It  maybe  shown,  however, 
that  a  person  may  be  known  as  well  by  one  name  as  the 
other.  §  The  law  supposes  every  person  to  have  two 
names,  one  the  family,  the  other  the  given  name.  A  sepa- 
rate single  letter  is  not  a  name.  II  But  one  Christian  name 
is  recognized  by  the  law.*l  An  error  in  the  middle  name 
may  be  treated  as  surplusage.**  The  addition  of  junior  to 
a  name  is  mere  description  of  the  person,  and  the  omission 
of  it  does  not  invalidate  any  act  or  proceeding  done  by  the 
same  person. ft    Where  the  name  of  the  person  commanded 


*  Barrow's  Kep.,  III.,   1743;    St.   Tr.,   XIX.,  100;     Sir  W.  Blackstone's 

Rep.,  555. 

t  jNIiller  vs.  Foley,  28  Barb..  681. 

■\.  Griswold  vs.  Sedgwick,  G  Cowen,  456;  S.  C,  1  Wend.,  126;  Scott  vs. 
Ely,  4  Id.,  455  ;  1  Russ.  on  Crimes,  619  ;  Hoye  vs.  Bush,  1  M.  &  Gr.,  7"'5. 

gFarnham  vs.  Hildrefch,  32  Barb.,  279;  Scott  vs.  Ely,  4  Wend.,  555; 
Shadg-et  vs.  Clipson,  8  East,  328  ;  Gurnsey  vs.  Lovell,  9  Wend.,  319  ;  Mead 
vs.  Hawes,  7  Cowen,  332  ;  Wilkes  vs.  Leech,  2  Taunt.,  400. 

II  Frank  vs.  Levie,  5  Rob't,  599. 

1  1  Ld.  Ray.,  562  ;  5  Johns.,  84  ;  2  Cow.,  463. 

**  Van  Voorhees  vs.  Budd,  39  Barb.,  479;  see  Milk  vs.  Christie,  1  Hill,  102^ 
ft  People  vs.  Collins,  7  Johns.,  549;  Fleet  «s.  Towns,  11  Wend.,  522;   Pad- 
gett vs.  Lawrence,  10  Paige,  170. 


03 

to  be  arrested  is  correctly  given  in  the  direction  to  the 
officer  in  the  warrant,  a  recital  in  the  body  of  the  warrant 
giving  the  name  erroneously  might  be  treated  as  surplus- 
age." If  only  the  initial  of  the  Christian  name  is  wrongly 
given,  the  arrest  is  illegal,  t 

The  Code  is  in  these  words  :  "  The  warrant  must  specify 
the  name  of  the  defendant  to  be  arrested,  or  if  it  be  un- 
known to  the  magistrate,  the  defendant  may  be  designated 
therein  by  any  name.i 

It  is  better  to  regard  this  provision  as  simply  permitting 
the  use  of  a  fictitious  name,  and  not  dispensing  with  the 
recognized  rule  that  the  defendant,  whose  name  is  unknown, 
should  be  described  as  accurately  as  possible,  so  as  to 
leave  no  discretion  to  the  officer  as  to  whom  to  arrest. 

§  44    Whether  to  have  a  Seal. 

According  to  Chitty,  the  general  principle  is  that  the 
warrant  ought  to  be  under  seal ;  §  but  warrants  have  been 
declared  to  be  sufficient  if  in  writing  and  signed  with- 
out a  seal,  unless  expressly  required  by  particular  act  of 
Parliament,  li 

Under  the  Kevised  Statutes  the  warrant  may  be  with  or 
without  seal,  but  must  be  under  the  hand  of  the  magis- 
trate.*[     The  Code  is  silent  on  this  question. 

§  45.   Other  Features. 

The  warrant  should  be  dated  and  signed  by  the  magis- 
trate, giving  his  title  ;  also  the  place  where  issued  should 
appear,  to  show  that  he  acted  within  his  jurisdiction. 
These  elements  are  made  necessary  by  the  Code.""^ 

*  Miller  vs.  Foley,  28  Barb.,  631. 

f  Graff  fs.  :Mullin,  April,  18o6.  referred  to  in  28  Barb.,  631  ;   Hex  vs.  Xew- 
mann,  1  lid.  Bay.,  562. 
t  %  152. 

§  1  Chit.  Cr.  L.,38. 
I  1  Bish.  Cr.  Prac,  §227. 
i  Part  IV.,  chap.  ii. ,  title  ii. ,  §  3. 
**  §  152. 


64 

It  slioukl  also  direct  where  tlie  lorisoner  is  to  be  brought. 

The  Code  gives  the  following  form  for  a  warrant : 

"  County  of  Albany,  [or  as  the  case  may  be]. 

"  In  the  name  of  the  People  of  the  State  of  New  York  : 

"  To  any  sheriff,  constable,  marshal  or  policeman  in  this 
State  [or  in  the  county  of  Albany,  or  as  the  case  may  be], 
as  provided  in  sections  155  and  156  "  (post,  §  54). 

"  Information  upon  oath  having  been  this  day  laid  before 
me,  that  the  crime  of  [designating  it]  has  been  committed, 
and  accusing  C.  D.  thereof. 

"  You  are  therefore  commanded,  forthwith  to  arrest  the 
above-named  C.  D.,  and  bring  him  before  me,  at, [nam- 
ing the  place,]  or  in  case  of  my  absence  or  inability  to  act, 
before  the  nearest  or  most  accessible  magistrate  in  this 

county. 

"  Dated  at  the  City  of  Albany,  [or  as  the  case  may  be], 
this  day  of  ,  18     . 

"  E.  F.,  Justice  of  the  Peace, 

[or  as  the  case  may  be]."* 

§  46.  Justice  acts  MinisteriaUy. 

The  justice,  in  making  and  delivering  the  warrant  to  the 
officer,  acts  ministerially.! 

This  is  an  important  distinction  to  an  officer,  for  when 
acting  ministerially  he  is  responsible  for  a  violation  of  duty, 
when  judicially  not. 

*  §  151. 

f  Blythe  vs.  Tompkins,  2  Abb.,  472;  Rogers  vs.  Mulliner,  6  W.,  597,  603. 
and  cases  there  cited. 


65 


CHAPTER  III. 

THE   AREEST. 

Section  47.  Outlawry. 

48.  Roman  Law. 

49.  Theory  of  the  Arrest. 

50.  What  is  an  Arrest? 

51.  Powers  of  the  Officer. 

52.  Exhibiting  Warrant. 

53.  How  Prisoner  to  be  Treated  by  Officer. 

a.  Stolen  Property. 

54.  When  and  Where  Warrant  to  be  Executed. 

55.  Where  Prisoner  to  be  arraigned. 

56.  Return  on  Warrant. 

57.  Manner  of  Arrest  not  Inquired  into  by  Magis- 

trates. 

58.  Arrests  in  Presence  of,  Going  to  or  Returning 

from  Court. 


§  47.  Outlaivry. 

Outlawry  was  pronounced  originally  only  in  cases  of 
treason  or  felony,  where  the  defendant  refused  to  obey  the 
summons.  Properly  it  was  limited  to  those  processes  in 
which  a  capias  lay,  that  is,  a  writ  or  warrant  to  take  the 
person  of  the  defendant.  In  criminal  cases,  sentence  of 
outlawry  operated  as  a  conviction  of  the  offense  itself  with 
which  the  accused  was  charged. 

Bracton,  who  wrote  in  the  thirteenth  century,  says,  the 
outlaw  forfeits  home  and  country,  and  becomes  an  exile. 

All  process  and  proceedings  to  outlaw  any  defendant  in 
civil  actions*  and  all  common  law  proceedings  for  the  out- 

*  R.  S.,  Part  iii.,  chap,  viii.,  title  xvii.,  §  15. 


66 

lawry  of  a  defendant  in  criminal  cases,  except  for  treason, 
were  abolished  by  the  Kevised  Statutes.  " 

By  a  judgment  of  outlawry  in  a  conviction  for  treason, 
all  the  civil  rights  of  the  convict  are  destroyed,  and  his 
estate  is  forfeited  to  the  State  during  his  lifetime. t 

§  48.  Boman  Laiv. 
Under  the  Komau  law  there  was  no  arrest  until  sentence 
had  been  pronounced  and  the  judgment  could  be  evaded  by 
croing  into  voluntary  exile,  in  marked  contrast  with  the 
practice  at  one  time  in  England,  to  seize  the  property  of 
the  accused,  arrested  or  imprisoned  for  suspicion  of  felony, 
in  addition  to  making  the  arrest  at  the  outset.  This  seiz- 
ure was  towards  the  close  of  the  fifteenth  century  deferred 
till   the   conviction  or  attainder  of  the  accused.  | 

§  49.   Theory  of  the  Arrest. 

Dr.  Lieber  wrote,  that,  "Even  in  the  freest  country  there 
is  this  painful  yet  unavoidable  contradiction,  that  while 
we  hold  every  person  innocent  until  by  lawful  trial  proved 
to  be  guilty,  we  must  arrest  a  person  in  order  to  bring  him  to 
a  penal  trial ;  and,  although  by  the  law  he  is  still  considered 
innocent,  he  must  be  deprived  of  personal  liberty  until  his 
trial  can  take  place,  which  cannot  always  follow  instantly 
upon  the  arrest.  § 

§  50.    What  is  an  Arrest. 

An  arrest  is  the  apprehending  or  restraining  of  one's 
person,  in  order  to  be  forthcoming  to  answer  an  alleged  or 
suspected  crime.  Some  degree  of  corporal  control  is 
ordinarily  necessary  to  constitute  an  arrest.  But  an  arrest 
may  be  complete  without  corporal  touch  or  control ;    as 

*  Part  iv. ,  chap,  ii.,  title  vii.,  art.  2,  §  20. 

t  Id.  g  16  ;  Id.  chap  i.,  title  i.,  art.  i.,  §  3. 

X  Eichardiii.,  chap.  iii.  (1483.) 

§  Civil  Liberty  and  Self-Government,  Rev.  ed.,  1874,  p  07. 


67 

where  the  party  to  be  arrested  submits  on  being  informed 
of  the  intenned  arrest."'^  Notice  of  arrest,  is,  however, 
essential,  and  without  it  no  amount  of  physical  restraint  is 
sufficient.'!'     But  this  notice  may  be  given  by  implication.^ 

§  51.  Poiuers  of  the   Officer. 

The  officer  may  break  ojjen  an  outer  or  an  inner  door  or 
window  of  any  building,  to  execute  the  warrant  if,  after 
notice  of  his  authority  and  purpose,  he  be  refused  admit- 
tance. § 

An  officer  may  break  open  an  outer  or  inner  door  or  win- 
dow of  any  building  for  the  purpose  of  liberating  a  person, 
who,  having  entered  for  the  purpose  of  making  an  arrest, 
is  detained  therein,  or  when  necessary  for  his  own  libera- 
tion. I! 

Every  person  must  aid  an  officer  in  the  execution  of  a 
warrant  if  the  officer  require  his  aid  and  be  present  and 
acting  in  its  execution.  1^ 

§  52.  Exhibiting  Warrant. 

A  regular  officer  is  not  bound  to  exhibit  his  authority  or 
process,  when  he  arrests  a  defendant ;  a  special  deputy  is. 
But  if  it  were  his  duty  to  exhibit  it,  when  demanded,  his 
refusal  would  not  constitute  him  a  trespasser,  if  he  could 
show  that  he  had  a  regular  legal  process  in  his  possession, 
which  authorized  the  arrest.** 

A  person  not  charged  with  felony  cannot  be  arrested 
without  having  an  opportunity  of  seeing  the  warrant. ft 

*  Emery  vs.  Chesley,  18  N,  H.,  190.  See  State  vs.  Phinney,  42  Me.,  384; 
Wood  vs.  Kinsman,  5  Vt.,  588;   Code,  §  171. 

t  Yates  vs.  People,  33  N.  Y.  (5  Tiff.)  509. 

X  lb.;  People  vs.  Pool,  27  Cal.,  571. 

§  Code,  §  175. 

iIb.,§17G. 
Tib.,  §§  169,  163,  162. 
«*  Arnold  vs.  Steeves  &  Frost,  10  W.,  517. 
tfCodd  vs.  Cabe,  N.  Y.  Weekly  Dig.,  vol.  3,  p.  376. 


68 

The  officer  must  have  the  warrant  in  his  possession  when 
he  executes  it  or  the  arrest  will  be  illegal* 

Where  the  officer  attempts  to  make  the  arrest  for  an 
offense  less  than  a  felony,  witho^^t  having  a  warrant  in  his 
possession  at  the  time,  the  person  against  whom  the  war- 
rant was  issued  will  not  be  guilty  of  an  assault  in  resisting 
such  attempted  arrest,  if  no  more  force  is  used  than  is 
necessary  to  prevent  his  apprehension.! 

The  Code  provides  that  the  defendant  must  be  informed 
by  the  officer  that  he  acts  under  a  warrant,  and  he  must 
show  it  if  required.:}; 

The  officer  who  executes  process  must  see  that  it  is  valid 
on  its  face  or  he  is  liable  for  his  acts  under  it.  The  law 
does  not  throw  any  protection  around  the  person  who 
attempts  to  arrest  by  an  illegal  warrant.  § 

The  writ  or  warrant  must  not  be  deficient  in  the  frame 
of  it.  II     It  must  be  lawful  on  tlie  face  of  it.l^ 

§  53.   How  Prisoner  to  he  Treated  by  Officer. 

The  arrest  should  be  made  without  unnecessary  violence,*" 
and  the  arrested  person  should  be  kindly  treated,  though 
it  is  for  the  officer  to  judge  as  to  the  severity  of  the  meas- 
ures necessary  to  prevent  an  escape.ft  A  prisoner  escaping 
after  a  lawful  arrest  may  be  retaken  by  the  officer  without 
a  fresh  warrant, ;[.:|;  even  where  the  officer  has  consented  to 
the  escape.  §§ 

*  Codd  ts.  Cabe,  N.  Y.  Weekly  Dig.,  vol.  3,  p.  376. 

fib. 

t  %  1T3. 

§  Blythe  m.  Tompkins,  2  Abb.,  472 ;  Housin  vs.  Barrow,  6  Durn.  &  E. ,  122. 

U  Barb.  Cr.  Tr.,  34,  3.5  ;  Id.,  82,  83,  464,  465. 

•:  Sandford  vs.  Nichols,  13  Mass.  R.,  285. 

**  State  vs.  Mahon,  3  Harr.  (Del.),  568  ;  See  Gardiner  vs.  Thibodeau,  14  La. 
Ann.,  732;  Brady  vs.  Price,  19  Tex.,  285;  DilU-*.  State,  25  Ala.,  15;  Mor- 
ton «s.  Bradley,  30  Id.,  683. 

ft  State  vs.  Stalcup,  2  Ired.  (N.  C),  50. 
H  Cooper  «s.  Adams,  2  Black.f(Ind.),  294. 
^gCom.  vs.  Sheriff,  1  Gratt.  (Va.),  127. 


69 


The  defendant  is  not  to  be  subjected  to  any  more  re- 
straint than  is  necessary  for  his  arrest  and  detention.* 

The  officer  making  the  arrest  has,  however,  a  right  to 
detain  the  defendant  for  a  reasonable  time  while  making 
a  bona  fide  effort  to  find  a  magistrate,  and  a  warrant  is  not 
spent  if  the  first  justice  nor  the  second  justice,  before  whom 
he  is  brought,  is  unable  to  try  the  case.f 

If  the  time  of  arrest  be  unseasonable,  as  in  or  near  the 
night,  whereby  the  officer  cannot  attend  the  justice,  or  if 
there  be  danger  of  a  present  rescue,  or  if  the  party  be  sick 
and  not  able  to  be  brought,  he  may  secure  him  till  such  time 
as  it  may  be  seasonable  to  bring  him4 

a.  Stolen  Proijeriy. 

On  a  warrant  for  larceny,  the  officer  on  arresting  the 
accused,  may  also  take  possession  of  the  goods,  if  found  in 
'the  possession  of  the  defendant,  and  bring  them  before  the 
magistrate  ;  and  the  latter  may  direct  them  to  be  delivered 
to  the  owner  from  whom  they  were  stolen,  if  he  is  satisfied, 
judicially,  that  the  property  has,  in  fact,  been  stolen,  and 
that  the  claimant  is  the  actual  owner.  § 

See  the  Code  on  this  subject  (§§  685-691). 

§  54.    When  and  ivliere  Warrant  to  he  Executed. 

A  warrant  must  be  executed  immediately  ;  the  officer  can- 
not delay  in  his  discretion  unless  the  ends  of  justice 
may  require  it.  I  The  Code  provides  that  for  misdemeanor 
the  arrest  by   warrant  cannot  be   made  on  Sunday  or  by 

*  Code,  §  172. 

f  Arnold  vs.  Steeves  &  Frost,  10  W.,  515  ;  Matter  of  Arthur  Henry,  29 
How.   Pr.,  187. 

X  Hale's  Pleas  of  the  Crown,  2  vol.,  p.  119,  120. 

§  Houghton  vs.  Bachman,  47  Barb.,  388  ;  R.  S.,  Part  IV.,  chap,  ii.,  art.  iii. , 
§§  38,  39,  40. 

II  1  Chitty's  Cr.  L.,  40,  59;  Barb.  Cr.  L.,467;  Matthews  vs.  Burke,  ST.  R. , 
110,  and  see  Queen  I's.  Downey,  72  B.,  281;  Wright  vs.  Court,  4  B  aad  C, 
596  ;    Pratt  vs.  Hill,  16  Barb.,  317. 


70 

niglit,  imless  by  direction  of  the  magistrate,  indorsed  on 
the  warrant ;  for  felony,  the  arrest  may  be  made  on  any 
day,  at  any  time  of  the  day  or  night." 

Warrants  issued  by  Justices  of  the  Supreme  Court, 
Judges  of  the  Superior  Court  or  Common  Pleas  of  the  City 
and  County  of  New  York,  Judges  of  County  or  City  Courts, 
may  be  executed  in  any  part  of  the  State.  Warrants  issued 
by  any  other  magistrate  shall  not  be  executed  out  of  the 
county  wherein  they  are  officers,  except  if  the  defendant 
be  in  another  county,  it  may  be  executed  therein  upon  the 
written  direction  of  a  magistrate  of  such  other  county  in- 
dorsed upon  the  warrant,  signed  by  him,  with  his  name  of 
office,  and  dated  at  the  city,  town  or  village  where  it  is 
made  to  the  following  effect  :  "  This  warrant  may  be 
executed  in  the  county  of ."t 

The  indorsement  mentioned  cannot,  however,  be  made 
unless  upon  the  oath  of  a  credible  witness,  in  writing,  in- 
dorsed on  or  annexed  to  the  warrant,  proving  the  hand- 
writing of  the  magistrate  by  whom  it  was  issued.  Upon  this 
proof,  the  magistrate  indorsing  the  warrant  is  exempted 
from  liability  to  a  civil  or  criminal  action,  though  it  after- 
ward appear  that  the  warrant  was  illegally  or  improperlv 
issued.:]: 

§  55.    Where  Prisoner  to  be  Arraigned. 

If  the  crime  charged  in  the  warrant  be  a  felony,  the 
officer  is  to  bring  the  person  accused  before  the  magistrate 
who  issued  the  warrant,  or  some  other  magistrate  in  the 
same  county.  § 

If  the  crime  charged  be  a  misdemeanor,  and  the  defend- 
ant be  arrested  in  another  county,  he  may  demand  to  be 
taken  before  a  magistrate  of  that  county  to  be  admitted   to 

"      170. 

t  Code,  §§  155  and  156. 

t  lb.,  §157.  • 

§E.  S.,  Partly.,  chap,  ii.,  title  2,  g§  3,  4,  13;  Code,  ^  158.  See  lb., 
§§  163  and  163.     • 


71 

bail  for  liis  appearance  before  tlie  magistrate  named  in  the 
warrant.* 

If  tlie  magistrate  who  issued  the  warrant  is  absent  or 
nnable  to  attend,  the  prisoner  is  to  be  taken  before  the 
nearest  or  most  accessil)le  magistrate  in  the  same  count^^t 
to  whom  the  depositions  on  which  the  warrant  was  issued 
must  be  sent.  If  not  procurable  the  prosecutor  and  his 
witnesses  must  give  their  evidence  anew.;|: 

§  56.  Betiirn  on  Warrant. 

A  proper  return,  indorsed  on  the  warrant,  when  executed 
and  signed  by  the  officer  or  person  making  the  arrest,  shall 
be  delivered  to  the  magistrate.  § 

The  officer  may  keep  his  warrant  for  his  own  justification, 
and  need  only  return  to  the  justice  what  he  has  done  in 
pursuance  of  its  commands.  II 

By  the  Code  the  officer  cannot  keep  the  warrant,  as  com- 
mitments for  examination  are  to  be  indorsed  on  it,l"  which 
will  necessitate  its  delivery  to  the  jailer  when  the  defendant 
is  to  be  detained  by  him,  and  the  magistrate  at  the  end  of 
all  examinations  is  to  return  the  warrant  with  other  papers 
to  the  Court  of  Oyer  and  Terminer,  or  Court  of  Sessions 
of  the  County  or  Cit_>  Court  having  poAver  to  inquire  into 
the  offense  by  the  intervention  of  a  grand  jury."* 

§  57.  3Ianner  of  Arrest  not  Inqidred  info  by  Mcujlstrates. 

When  a  party  is  liable  to  be  detained  on  a  criminal  war- 
rant, the  court  will  not  inquire  into  the  manner  in  which 
the  capture  was  effected. ti' 

*Code,  §§  1.59,  100,  1(51. 

fib.,  §164.  < 

Xlh.,  §166. 

§  K.  S.,  Part  IV.,  chap,  ii.,  title  ii.,  §  12,  concluding  part ;  Code,  §  164. 

II  2  Ld.  Raym.,  1196  ;  Dick's  Just.  Arr.,  4. 
1  §  193. 
**  §  221. 
ff  Rex  vs.  Marks,  3  Bast,  157  ;  Ex  parte  Kraus,  B  and  C,  358. 


On  the  return  to  a  Avrit  of  habeas  corpus  the  jailer  is 
only  bound  to  show  the  warrant  for  the  detention  of  the 
party,  and  not  the  caption.  On  this  point  a  distinction  has 
always  existed  between  the  practice  in  civil  and  criminal 
cases.  In  the  former  the  court  inquires  into  the  manner  in 
which  the  arrest  was  effected,  and  if  that  was  improper, 
they  discharge  the  party.* 

§  58.  Arrests  in  Presence    of,   Going  to,  or  Returning  from, 

Court. 

It  seems  agreed  that  all  criminal  courts  may  discharge  a 
person  arrested  in  the  face  of  them  by  process  from  any 
other  court ;  and  it  is  holden  that  all  such  courts  may  also 
discharge  the  arrest  of  any  person  during  his  journeying  to 
or  from  such  courts,  or  his  necessary  attendance  in  them.f 

*  Lyf ord  vs.  Tyrrel,  1  Anstr. ,  85;  Spencer  vs.  Stuart,  3  East,  89  ;  Ex  parte 
Susannah  Scott.,  G.  B.  &  C,  4-1(5. 
f  Hawk's  Summary,  p.  4. 


73 


CHAPTER  IV. 

SEARCH   WAREANTS. 

Section  59.  Search  Warrant  Defined. 

60.  Necessity  for  Caution  in  Issuing. 

61.  Upon  what  Grounds  it  may  be  Issued. 

62.  How  Guarded  ;   Probable  Cause. 

63.  Before  Issuing  Warrant  Magistrate  must  Ex- 

amine   on   Oath   Complainant  and  his 
Witnesses. 

64.  When  Warrant  to  be  Issued. 

65.  Form  of  the  Warrant. 

66.  By  whom  Served. 

67.  Powers  of  Officer. 

68.  When  Warrant  may  be  Served  in  the  Night- 

time. 

69.  When  to  be  Executed  and  Returned. 

70.  Duties  Respecting  the  Property  Taken. 

71.  If  Grounds  for  Warrant   Controverted,  the 

Magistrate  to  take  Testimony,  etc. 

72.  Maliciously   Procuring    Search   Warrant    a 

Misdemeanor. 

73.  Peace  Officer  Exceeding  his  Authority. 

74.  Custodian  of  the  Goods  to  be  Arrested.    • 

75.  Person  Charged  with  Felony  Supposed  to 

have  a  Dangerous  Weapon,  etc. 


§  59.  Search  Warrant  Defined. 

A  search  warrant  is  an  order  in  writing,  in  the  name  of 
the  people,  signed  by  a  magistrate,  directed  to  a  peace 
officer,  commanding  him  to  search  for  personal  property, 
and  bring  it  before  a  magistrate.* 

*  Code,  §  791. 


74 


§  60.  Necessity  for  Caution  in  Issuing. 

The  precautions  to  be  observed,  as  heretofore  indicated, 
in  issuing  warrants  of  arrest,  have  peculiar  force  with 
se'arch  warrants,  for,  as  has  been  well  stated,  "there  is  not 
a  description  of  process  known  to  the  law  the  execution  of 
which  is  more  distressing  to  the  citizen.  Perhaps  there  is 
none  which  excites  such  intense  feeling  in  consequence  of 
its  humiliating  and  degrading  effects."  " 

Differing  in  various  respects  from  ordinary  warrants  of 
arrest,  the  search  warrant  presents  features  requiring  sep- 
arate notice. 

§  61.    Ujwn  ivhcd  Grounds  it  may  he  Issued. 

1.  When  the  property  was  stolen  or  embezzled,  in  which 
case  it  may  be  taken,  on  the  warrant,  from  any  house  or 
other  place  in  which  it  is  concealed,  or  from  the  possession 
of  the  person  by  whom  it  was  stolen  or  embezzled,  or  of 
any  other  person  in  whose  possession  it  may  be  ; 

2.  When  it  was  used  as  the  means  of  committing  a  felony, 
in  which  case  it  may  be  taken,  on  the  warrant,  from  any 
house  or  other  place  in  which  it  is  concealed,  or  from  the 
possession  of  the  person  by  whom  it  was  used  in  the  com- 
mission of  the  crime,  or  of  any  other  person  in  whose  pos- 
session it  may  be ; 

3.  When  it  is  in  the  possession  of  any  person  with  the 
intent  to  use  it  as  the  means  of  committing  a  public  offense, 
or  in  the  possession  of  another,  to  whom  he  may  have 
delivered  it  for  the  purpose  of  concealing  it  or  preventing 
its  being  discovered,  in  which  case  it  may  be  taken,  on  the 
warrant,  from  such  person,  or  from  a  house  or  other  place 
occupied  by  him  or  under  his  control,  or  from  the  possession 
of  the  person  to  whom  he  may  have  so  delivered  it.t 

*  1  vol.  Arch.  Or.  Pr.  and  PI.,  p.  131,  Pomeroy's  Notes. 
t  Code,  §  792. 


75 


§  62. — How  Guarded ;  Prohahle  Cause. 

By  Coke  claimed  to  be  contrary  to  law,  and  by  Lord 
Camden  characterized  as  having  crept  into  the  law  by  im- 
perceptible practice,  Lord  Hale  clearly  establishes  the 
legality  of  search  warrants  on  the  ground  that,  without 
them,  felons  would  frequently  escape  detection.* 

Finally  the  process  is  recognized  by  statute  and  per- 
mitted to  be  executed  in  the  daytime  on  proper  complaint 
made  on  oath.t 

The  Constitution  of  the  United  States  (substantially 
adopted  in  the  Constitution  of  each  of  the  several  States), 
provides  that  the  right  of  tjie  people  to  be  secure  in  their 
persons,  houses,  papers  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated  ;  and  no  war- 
rant shall  issue  but  upon  probable  cause  supported  by 
oath  or  affirmation  and  particularly  describing  the  place  to 
be  searched  and  the  person  or  thing  to  be  seized.:}: 

The  warrant  ought  also  to  name  the  person  in  whose 
building  the  stolen  j^roperty  is  supposed  to  be.§ 

§  63.  Before  Issuing  Warrant,  Magistrale  mast  Examine,  on 
Oath,  the  Complainant  and  his  Witnesses. 

The  magistrate  must,  before  issuing  the  warrant,  exam- 
ine, on  oath,  the  complainant  and  any  witnesses  he  ma}^ 
produce,  and  take  their  depositions  in  writing,  and  cause 
them  to  be  subscribed  by  the  parties  making  them.  || 

The  depositions  must  set  forth  the  facts  tending  to  estab- 
lish the  grounds  of  the  application,  or  probable  cause  for 
believing  that  they  exists 

*  1  Arch.,  Cr.  Pr.  and  PI.,  p.  126,  Pomeroy's  Notes, 
fib. 

tl  Arch.  Cr.  Prac.  and  PI.,  p.  137;   Code,  §  793. 
§  1  Arch.  Cr.  Pr.  and  PL,  p.  129. 
II  Code,  §  lU. 
1  lb.,  §  795. 


70 

§  64.    When  Warrant  to  he  Issued. 

If  the  magistrate  be  thereupon  satisfied  of  the  existence 
of  the  grounds  of  the  application,  or  that  there  is  j)robable 
cause  to  believe  their  existence,  he  must  issue  a  search 
warrant  signed  by  him  with  his  name  of  office,  to  a  peace 
officer  in  his  county,  commanding  him  forthwith  to  search 
the  person  or  place  named,  for  the  property  specified,  and 
to  bring  it  before  the  magistrate.* 

§65.  Form  of  the  Wanroit. 

The  warrant  must  be  in  substantialh'  the  following  form  : 
"  County  of  Albany  (or  as  the  case  may  be)  : 
"  In  the  name  of  the  people  of  the  State  of  New  York  : 
"To  any  sheriff,  constable,  marshal,  or  policeman  in  the 
county  of  Albany  (or  as  the  case  may  be). 

"Proof,  by  affidavit,  having  been  this  day  made  before 
me,  by  (naming  every  person  whose  affidavit  has  been  taken), 
that  (stating  the  particular  grounds  of  the  application, 
according  to  section  792;  or  if  the  affidavits  be  not  positive, 
"  that  there  is  probable  cause  for  believing  that  "  stating 
the  ground  of  the  application  in  the  same  manner),  "  you 
are  therefore  commanded,  in  the  daytime  (or  "  at  any  time 
of  the  day  or  night,"  as  the  case  may  be,  according  to 
section  801),  to  make  immediate  search  on  the  person  of 
C.  D.  (or  "in  the  building  situated" — describing  it  or  any 
other  place  to  be  searched  with  reasonable  particularity, 
as  the  case  may  be),  for  the  following  property  (describing 
it  with  reasonable  particularity),  and  if  you  find  the  same 
or  any  part  thereof,  to  bring  it  forthwith  before  me,  at 
(stating  the  place). 

"Dated  at  the  City  of  Albany  (or  as  the  case  maybe),  the 
day  of  ,  18     ." 

"  E.  F. ' 
Justice  of  the  peace  of  the  city  (or  town) 
of  (or  as  the  case  may  be).t 

*  Code,  §  796. 

t  See  Johnson  vs.  Comstock,  14  Hun.,  238  ;  Code,  i;  797. 


71 


§  66.  By  whom  Served. 

A  search  warrant  may,  in  all  cases,  be  served  by  any  of 
the  officers  mentioned  in  its  direction,  but  by  no  other  per- 
son, except  in  aid  of  the  officer,  on  his  requiring  it,  he 
being  present  and  acting  in  its  execution." 

§  67.  Powers  of  Officer. 

The  officer  may  break  open  an  outer  or  inner  door  or 
window  of  a  building,  or  any  part  of  the  building,  or  any 
thing  therein,  to  execute  the  warrant,  if,  after  notice  of  his 
authority  and  purpose,  he  be  refused  admittance.t 

Should  it  be  necessary  to  break  the  outer  door  of  a  house 
the  officer  should  previously  make  the  usual  demand  and 
give  notification  of  his  business,  but  no  precise  form  of 
words  is  required.:}:  Boxes  may  likewise  be  broken  open 
after  a  refusal  to  deliver  up  the  keys  on  demand. 

He  may  break  open  any  outer  or  inner  door  or  window 
of  a  building  for  the  purpose  of  liberating  a  person  who, 
having  entered  to  aid  him  in  the  execution  of  the  war- 
rant, is  detained  therein,  or  when  necessary  for  his  own 
liberation.  § 

§  68.    When  Warrant  may  he  Served  in  the  Night-time. 

The  magistrate  must  insert  a  direction  in  the  warrant 
that  it  be  served  in  the  daytime,  unless  the  affidavits  be 
positive  that  the  property  is  on  the  person  or  in  the  place 
to  be  searched,  in  which  case  he  may  insert  a  direction 
that  it  be  served  at  any  time  of  the  day  or  night.  II 

§  69.    When  to  he  Executed  and  Returned. 
A  search  warrant  must  be  executed  and  returned  to  the 
magistrate  by  whom  it  was  issued,  if  issued  in  the  city  and 

*  Code,  §  798. 

t  Bell  V  Clapp,  10  Johns.,  2G3  ;  Code,  §  799. 

iPost.,  137. 

§  Code,  §  800. 

I  lb.,  §801. 


78 

county  of  New  York,  within  five  days  after  its  date,  and 
if  in  any  other  county,  within  ten  days.  After  the  expira- 
tion of  those  times  respectively,  the  Avarrant,  unless 
executed,  is  void." 

The  officer  is  to  keep  the  search  warrant  in  his  posses- 
sion, and  may  use  necessary  violence  to  reclaim  it.f 

§  70.  Duties  Respecthuj  the.  Property  Taken. 

When  the  officer  takes  property  under  the  warrant,  he 
must  give  a  receipt  for  the  property  taken  (specifying  it  in 
detail)  to  the  person  from  whom  it  was  taken  by  him,  or  in 
whose  possession  it  was  found,  or,  in  the  absence  of  any 
person,  he  must  leave  it  in  the  place  where  he  found  the 
property.:]: 

When  the  property  is  delivered  to  the  magistrate,  he 
must,  if  it  was  stolen  or  embezzled,  dispose  of  it  as  pro- 
vided in  sections  687  to  689,  both  inclusive.  If  it  were 
taken  on  a  warrant  issued  on  the  grounds  stated  in  the 
second  or  third  subdivisions  of  section  792,  he  must  retain 
it  in  his  possession,  subject  to  the  order  of  the  court  to 
which  he  is  required  to  return  the  proceedings  before 
him,  or  of  any  other  court  in  which  the  offense,  in  respect 
to  which  the  property  was  taken,  is  triable.  § 

Befurn  of  Warrant,  and  Delivenj   to  Magistrate  of   Inven- 
tory of  Property  Taken. 

The  officer  must  forthwith  return  the  warrant  to  the 
magistrate,  and  deliver  to  him  a  written  inventory  of 
the  property  taken,  made  publicly,  or  in  the  presence  of  the 
person  from  whose  possession  it  was  taken,  and  of  the  ap- 
plicant for  the  warrant,  if  they* be  present,  verified  by  the 
affidavit  of  the  officer,  and  taken  before  the  magistrate  to 

*  Code,  §  802. 
t  3  Car.  and  P.,  31. 
X  Code,  §  803. 
§  lb.,  §804. 


79 

the  following  effect  :  "  I,  A.  B.,  the  officer  by  whom  this 
warrant  was  executed,  do  swear  that  the  above  inventory 
contains  a  true  and  detailed  account  of  all  the  property 
taken  by  me  on  the  warrant."  "' 

The  magistrate  must  thereupon,  if  required,  deliver  a 
copy  of  the  inventory  to  the  person  from  whose  possession 
the  property  was  taken,  and  to  the  applicant  for  the 
warrant.'!' 

If  it  appears  that  the  property  taken  is  not  the  same  as 
that  described  in  the  warrant,  or  that  there  is  no  probable 
cause  for  believing  the  existence  of  the  grounds  on  which 
the  warrant  was  issued,  the  magistrate  must  cause  it  to  be 
restored  to  the  person  from  whom  it  was  taken.:]; 

The  magistrate  must  annex  together  the  depositions,  the 
search  warrant  and  return,  and  the  inventory,  and  return 
them  to  the  next  Court  of  Sessions  of  the  county,  or  city 
court,  having  power  to  inquire  into  the  offense  in  respect 
to  which  the  search  warrant  was  issued,  by  the  intervention 
of  a  grand  jury,  at  or  before  its  opening  on  the  first  day.  § 

The  officer  ought  not  to  take  any  goods  except  those 
specified  as  likely  to  be  of  use  in  substantiating  the  charge 
of  stealing  the  goods  that  were  specified.  || 

He  may  take  goods  corresponding  in  description  with 
those  directed  to  be  searched  for.  He  is  not  made  the 
judge  in  the  last  resort  of  the  identity  of  the  goods  with 
those  stolen.  1 

§  71.  If   Grounds  for   Warrant  Controverted,  llagistrate   to 

Take  Testimony. 

If  the  grounds  on  which  the  warrant  was  issued  be  con- 
troverted, the  magistrate  must  proceed  to  take  testimony 
in  relation  thereto."* 

The  testimony  given  by  each  witness  must  be  reduced 


*  Code,  §  805.  f  Code,  §  806. 

t  lb.,  §  809.  §  lb.,  §  810. 

II  G  Barn  &  Cress.,  332.  1"  5  Mete,  98. 
**  Code,  §  807. 


80 

to  writing  and  authenticated  in  the  manner  prescribed  in 
section  200  of  the  Code.* 

§  72.  Moliciously  Procuring  Search  Warrant,  a  Misdemeanor. 

A  person  who  maliciously  and  without  probable  cause 
procures  a  search  warrant  to  be  issued  and  executed,  is 
guilty  of  a  misdemeanor.f 

§  73.  Peace  Officer  Exceeding  his  Authority. 

A  peace  officer  who,  in  executing  a  search  warrant,  will- 
fully exceeds  his  authority,  or  exercises  it  with  unnecessary 
severity,  is  guilty  of  a  misdemeanor.:]: 

§  74.   Custodian  of  the  Goods  to  be  Arrested. 

The  party  in  whose  custody  the  goods  are  found  is  to  be 
taken  before  the  magistrate  with  the  goods,  to  be  disposed 
of  according  to  the  evidence  as  to  his  knowledge  of  the 
goods  having  been  stolen.  § 

§  75.  Person  Charged  ivith  Felony  supposed  to  have  a 
Dangerous  Weapon,  etc. 

When  a  person  charged  with  a  felony  is  supposed  by  the 
magistrate  before  whom  he  is  brought  to  have  upon  his 
person  a  dangerous  weapon,  or  anything  which  may  be 
used  as  evidence  of  the  commission  of  the  offense,  the 
magistrate  may  direct  him  to  be  searched  in  his  presence, 
and  the  weapon  or  other  thing  to  be  retained,  subject  to 
his  order  or  the  order  of  the  court  in  which  the  defendant 
may  be  tried.  || 

*  Code,  §  808. 

fib.,  §811. 

X  lb.,  §  812. 

§  2  Hale  151,  152.;    1  Nun.  &  Walsh,  2G2. 

II  Code,  §  813. 


HISTORY  OF  THE  EXAMINATION    AFTER  ARREST, 

THE  EXAMINATION  AS  EVIDENCE  IN  THE 

TRIAL,    AND    THE     DETENTION     OF 

THE  ACCUSED  PENDING 

THE  HEARING. 


Chapter  I.  History  of  the  Examination  after  Arrest. 
II.  Examination  as  Evidence  on  the  Trial. 
III.  When     and    how     Detention     of     Prisoner 

pending  the  Examination. 
lY.  Where  to  be  Detained. 


CHAPTEE   I. 

HISTORY  OF  THE  EXAMINATION  AFTER  ARREST. 

Section  76.  Original  Practice. 

77.  Development  of  the  Examination. 


§  76.   Original  Practice. 

We  have  reached  that  stage  when  the  accused  is  ar- 
raigned in  court  after  arrest,  and  whether  apprehended  by 
warrant  or  without  it,  the  proceedings  that  immediately 
follow  are  in  the  main  governed  by  the  same  rules ;  but 
prior  to  taking  up  the  consideration  of  what  they  are,  a 
review  of  previous  practices  will  be  both  interesting  and 
instructive. 

"  The  criminal  branch  of  jurisprudence  is  the  earliest  in 
development  but  the  latest  to  be  reduced  to  a  rational  and 
consistent  system,  requiring  therefor  a  practical  wisdom, 
6 


82 

the  very  latest  growtli  of  civilization  capable  of  coping  witli 
this,  the  highest  branch  of  political  science."  * 

Formerly  the  pleadings  of  the  parties,  in  England  at 
least,  vi^ere  ore  tenus,  i.  e.,  verbally,  orally  ;  and  the  practice 
is  said  to  have  been  retained  till  the  reign  of  Edv^ard  IIL,t 
and  as  there  was  no  distinction  in  the  primitive  code  be- 
tween civil  and  criminal  law,  criminal  proceedings  formed 
no  exception  to  the  rule. 

"  When  punishments  for  petty  offenses  were  worse  than 
brutal,  the  methods  by  which  criminals  were  condemned 
were  naturally  not  very  refined.  In  these  early  times,  if  a 
thief  was  detected  in  the  act  of  carrying  off  what  he  had 
stolen,  no  trial  was  considered  necessary ;  if  a  poor  man, 
who  could  not  pay  the  fine,  he  was  put  to  death  with  little 
ceremony.  In  more  doubtful  cases,  as  we  have  seen,  the 
guilt  or  innocence  was  ascertained,  in  the  case  of  a  layman, 
by  one  of  two  methods  of  procedure, — by  ordeal  or  by 
compurgation, — and  later,  by  the  wager  of  battle.  The 
practical  effect  of  the  first  was,  that  the  accused  could  only 
be  saved  by  the  aid  of  the  priest  who  had  the  ceremony  in 
charge ;  the  j^i'actical  effect  of  the  second  was,  that  he 
could  be  saved  only  by  the  oaths  of  a  sufficient  number  of 
friends,  and  the  practical  effect  of  the  third  was,  that  suc- 
cess was  to  the  strongest  or  most  skillful  in  the  use  of 
deadly  weapons."  \ 

At  a  time  when  the  burden  of  proof  of  guilt  was  not 
recognized  as  resting  on  the  accuser,  but,  on  the  contrary, 
the  burden  of  proof  of  innocence  was  with  the  accused,  it 
would  be  idle  to  look  for  any  provisions  of  law  or  customs 
having  in  view  the  determination  of  the  question  as  to 
whether  an  accused  should  be  put  on  trial.  Nothing  inter- 
vened between  the  arrest  and  the  trial,  except  the  possi- 
bility of  being   bailed,   save  time,  which  was  usually  so 

*  Amer.  Cyclop.,  vol.  v.,  p.  485. 

t  3  Reeve's  Hist.  Eng.  Law,  95 ;  Stephen.  Plead.  29,  and  see  Bracton, 
3726. 

X  Pike's  Hist,  of  Crime  in  Eng.,  p.  52. 


83 

prolonged  as  to  call  for  statutory  restrictions  and  limitations 
involving  severe  penalties.  And  the  trial,  even,  was  such 
but  in  name.  We  are  referred  to  the  jDroceeding  against 
Andrew  Harela,  Earl  of  Carlisle,  as  being  thoroughly 
characteristic  of  the  age.  He  was  thrown  into  prison  and 
the  accusation  against  him  was  heard  in  his  absence.  He 
had  no  opportunity  of  making  any  answer,  and  was  brought 
before  his  judges  only  to  hear  their  judgment,  which,  the 
Court  sitting  under  a  special  commission,  a  tribunal  com- 
mon in  those  days,  delivered  at  some  length. 

But  we  find,  as  against  this  one-sided  hearing,  that  it 
was  one  of  the  fundamental  personal  rights  accorded  by  the 
German  law,  that  the  accused  should  have  a  term  in  which 
to  reply  and  prepare  his  proof,  and  thereby  the  defendant 
was  permitted  at  least  seven  days  before  the  assembling  of 
the  Court.*  Also  that  the  plaintiff  must  summon  the 
accused  three  times  in  the  presence  of  good  witnesses  to 
appear  before  the  Court. t  And  elsewhere  it  is  insisted 
that  no  code  provided  for  trials  at  any  time,  except  by 
sworn  judges. 

These  principles,  if  ever  enacted,  were  violated  with  im- 
punity. When  the  means  for  the  dissemination  of  knowledge 
were  so  limited  and  the  central  power  of  government  so 
"weak  and  impotent,  it  is  not  at  all  surprising  that  statutes 
should  lie  dormant  and  unobserved  except  in  the  imme- 
diate neighborhood  of  the  legislative  halls.  Hence  cus- 
toms and  usages  were  recognized  and  ignorantly  adopted 
in  direct  conflict  with  law,  until  the  art  of  printing  was 
firmly  established.  ^'; 

§  77.  Developmeni  of  Examination. 

It  was  from  no  desire  to  enlarge  the  rights  of  accused 
persons,  or  to  throw  around  them  safeguards    against   op- 

*  Henry  VII.,  §4. 
t  Inc.  11  ;  Alfr.  (Emil),  15. 

X  In  the  year  1500,  it  is  said  there  were  about  two  hundred  (200) 
printing  offices  in  Europe. 


84 

pression  and  injustice,  that  there  was  enacted  a  statute 
which  operated  to  the  advantage  of  those  arrested.  The 
theories  that  obtained  woukl  not  suggest  any  provision 
looking  to  the  forms  now  recognized  as  an  essential  part  of 
criminal  jurisprudence.  That  there  existed  in  the  minds 
of  people  a  disposition  to  provide  a  hearing  preliminary  to 
trial,  with  whom  the  trial  itself  had  not  attained  a  state  of 
advancement  worthy  of  the  name,  according  to  after  con- 
ceptions, is  a  proposition  which  to  state  it  will  secure  its 
rejection. 

Legislation  devised  to  meet  another  demand,  incidentally 
laid  the  foundation  for  a  branch  of  criminal  proceedings 
now  provided  for  throughout  the  civilized  world. 

The  power  of  a  committing  magistrate  to  discharge  was 
quite  limited,  and  a  prisoner  once  such  remained  in  custody 
at  least  until  the  next  jail  delivery  in  General  Sessions. 

The  right  to  bail  under  these  circumstances  was  a  pecu- 
liarly valuable  one,  and  furnished  whatever  immunity  or  in- 
dulgence that  was  sought  to  be  extended  prior  to  trial.  This 
right  was  early  conceded,  and  it  being  iisually  the  only  mode 
of  liberation  before  trial,  became  subject  to  great  abuse. 

To  the  attempts  that  were  made  by  law  to  check  the 
arbitrary  exercise  of  the  bailing  power  is  to  be  ascribed  the 
origin  of  a  statutory  direction  for  a  hearing  anterior  to  a 
commitment  to  answer.  Such  efforts  looked  but  towards 
restraining  the  justices  in  their  evil  practices  indicated^ 
and  never  contemplated  the  initiation  of  what  is  now  re- 
garded as  an  indispensable  aid  to  justice. 

By  an  act  passed  in  A.  d.  1483,  the  power  was  given  to  a 
single  justice  to  bail,  in  like  form  as  though  the  prisoner 
was  indicted  before  the  same  justices  in  their  sessions.* 

Thereafter  (1488)  by  another,  it  was  ordained  that  no 
prisoner  arrested  for  felony  should  be  letten  to  bail  or 
mainprise  by  any  one  justice  of  the  peace,  but  by  the  whole 
justices,  or  at  least  two  of  them,  whereof  one  to  be  of  the 
quorum. 

*  1  Richard  III.,  cap.  iii. 


85 

The  latter  act  not  proving  adequate  to  the  ends  for 
which  it  was  passed,  there  was  finally  adopted  the  statute 
of  Philip  and  Mary  in  1554,  the  importance  of  which  will 
entitle  it  to  more  than  a  passing  notice. 

By  way  of  preamble  it  states  that,  "  One  justice  of  the 
peace  in  the  name  of  himself  and  another  of  tlie  justices, 
his  companion,  not  making  the  said  justice  party  or  privy 
with  the  case  wherefore  the  prisoner  should  be  bailed,  hath 
oftentimes  by  sinister  labour  and  means  set  at  large  the 
greatest  and  notablest  offenders,  such  as  be  not  replevisable 
by  the  laws  of  the  realm ,  and  yet  the  rather  to  hide  their 
affections  in  that  behalf  have  signed  the  cause  of  their  ap- 
prehension to  be  but  only  for  suspicion  of  felony,  whereby  the 
said  offenders  have  escaped  unpunished,  and  do  daily,  to  the 
high  displeasure  of  Almighty  Lord,  to  the  great  peril  of  the 
King  and  Queen's  subjects,  and  encouragement  of  all  thieves 
and  evildoers."  * 

The  perniciousness  here  inveighed  against  could  not 
have  existed  had  not  the  proceedings  prior  to  bailing  been 
oral,  otherwise  the  justice  joining  in  taking  the  bond  could 
have  made  himself  "  party  or  privy  with  the  case  where- 
fore the  prisoner  should  be  bailed,"  and  the  true  cause  of 
apprehension  would  have  been  readily  ascertainable  from 
an  examination  of  the  written  testimony,  thus  precluding  a 
false  designation  of  the  accusation. 

This  was,  no  doubt,  the  argument  which  resulted  in  the 
adoption  of  the  following  section,  one  of  the  chief  features 
of  which,  it  will  be  observed,  lies  in  the  direction  to  take 
the  evidence  in  writing. 

"  Said  justices,  one  of  them  being  of  the  quorum,  when 
any  such  prisoner  is  brought  before  them  for  any  man- 
slaughter or  felony,  before  any  bailment  or  mainprise,  shall 
take  the  examination  of  the  said  prisoner  and  information 
of  them  that  bring  them  of  the  fact  and  circumstances  there- 
of, and  the  same  or  as  much  thereof  as  shall  be  material  to 
prove  the  felony  shall  be  put  in  writing,  before  they  make 

*  1  and  2  Philip  and  Mary,  cap.  xiii. 


86 


the  same  bailment,  which  said  examination,  together  witk 
with  the  said  bailment,  the  said  justice  shall  certify  at  the 
next  General  Goal  delivery  to  be  holden  within  the  limits  of 
their  Commission."  ^ 

We  have  now,  for  the  first  time,  a  statutory  regulation 
respecting  examinations.  It  proves,  beyond  question,  that 
all  previous  hearings,  if  any  were  had,  must  have  been  oral, 
the  simplest  forms  being  resorted  to,  and  in  the  absence  of 
any  legal  necessity  therefor  and  the  slender  power  to  dis- 
charge, snch  hearings  were  of  no  importance  or  value  and 
resulted  in  either  the  bailing  or  commitment  of  the  sus- 
pected party.  They  were  not  regarded  as  of  any  material 
service  to  either  the  people  or  the  prisoner,  and  were,  no 
doubt,  simple  statements  to  inform  the  justice  of  the 
nature  of  the  oftense  to  enable  him  to  determine  only 
whether  bailable  or  not,  and  the  character  of  bail  to  require. 

Though  the  statement  of  the  prisoner  himself  on  the 
examination  was  declared  to  be  proper,  it  does  not  a2)pear 
that  he  was  permitted  to  be  present  at  the  examination  of 
the  complainant  and  his  witnesses,  to  cross-examine  them, 
or  to  be  aided  by  counsel  or  to  present  witnesses  on  his 
own  behalf.  If  a  hearing  was  accorded  to  the  witnesses  for 
the  defense  they  were  not  sworn,  their  testimony  being 
simply  written  down  and  transmitted  with  the  other  papers. 
On  the  trial  of  felons  before  the  Justices  of  jail  delivery, 
the  latter  often  heard  witnesses  and  evidence  which  went 
to  the  acquittal  of  the  prisoner,  yet  not  on  oath,  and  de- 
livered such  testimony  and  evidence  "  to  the  jury  to  give 
credit  or  to  think  thereof  as  they  shall  see  fit  and  find 
cause,  "t 

The  statutes  of  Philip  and  Mary  were  amended  and 
extended  to  make  their  jjrovisions  applicable  to  persons 
taken  on  a  charge  of  misdemeanor  or  suspicion  thereof.:}: 

*  1  and  2  Philip  and  Mary,  cap.  xiii. 
t  Dalt.  chap,  clxv.,  p.  412. 
tGeo.  IV.,  eh.  64,  §  3. 


87 


h 


I 


CHAPTER  11. 

§  78.  Examination  as  Evidence  on  the  Trial. 

Examinations  cease  to  be  what  they  were  prior  to 
statutory  recognition,  extra-judicial,  and  are  admitted  in 
evidence  on  the  trial  of  the  prisoner  upon  general  prin- 
ciples of  evidence,  on  the  ground  that  they  have  been  taken 
in  the  course  of  a  judicial  proceeding  exj^ressly  authorized 
by  law,  when  the  defendant  was  present  and  had  the 
right  of  cross-examination. 

But  it  would  be  only  a  part  of  the  true  reason,  and 
tend  to  mislead,  were  it  said  that  the  depositions 
taken  in  examinations  are  admitted  in  evidence,  because 
not  extra-judiciaL  Going  upon  that  reason  alone,  the 
original  complaint  on  oath  before  the  magistrate  on  apply- 
ing for  a  warrant  would  be  admissible  in  evidence 
against  the  defendant,  although  he  had  not  then  been 
brought  into  Court.  This  is  a  judicial  proceeding,  and  yet 
it  does  not  appear  that  the  original  complaint  was  ever 
received  in  evidence  against  the  defendant.  The  contrary 
was  expressly  adjudged. "  The  deposition  must  not  only  be 
taken  in  a  judicial  proceeding,  but  it  must  be  taken  when 
the  defendant  is  present  and  has  the  opportunity  to  cross- 
examine  the  witness ;  otherwise  it  will  not  be  received.  An 
extra-judicial  examination  in  the  absence  of  the  prisoner 
might,  however,  be  received  as  a  dying  declaration.  It 
is  said  that  the  object  of  the  statute  was  not  to  provide 
for  such  examinations  becoming  matter  of  future  evidence, 
such  a  purpose  was  not  in  the  contemplation  of  the 
Legislature,  but  to  enable  the  reviewing  court  to  see 
whether  the  examining  justice  proceeded  correctly,  and 
whether  the  witnesses  are    consistent  or  contradictory  in 


*  2  Hill's  S.  Car.  L.  R.,  p.  009. 


88 

tlie  evidence  wliicli  they  give,  witliout  manifesting  any  in- 
tention to  alter  the  law  of  evidence. 

But  before  the  statute  of  Philip  and  Mary,  a  deposition 
taken  before  a  justice  of  the  county  where  a  felony  was 
committed  would  not  have  been  evidence,  even  though  the 
witness  had  died  or  was  unable  to  travel,  because  extra- 
judical.* 

On  this  subject  of  evidence,  Eyre,  Chief  Baron,  said : 
"The  most  common  and  ordinary  species  of  legal  evidence 
consists  in  the  depositions  of  witnesses  taken  on  oath  before 
the  jury,  in  the  face  of  the  court,  in  the  presence  of  the  pris- 
oner and  received  under  all  the  advantage  which  examina- 
tion and  cross-examination  can  give.  Beyond  this  kind  of 
evidence  there  are  also  two  other  species  which  are  admit- 
ted by  law :  the  one  is  the  dying  declaration  of  a  person 
who  has  received  a  fatal  blow ;  the  other  is  the  examination 
of  a  prisoner  and  the  depositions  of  the  witnesses  who  may 
be  produced  against  him,  taken  officially  before  a  justice  of 
the  peace,  by  virtue  of  a  particular  act  of  Parliament,  which 
authorizes  magistrates  to  take  such  examinations,  and 
directs  that  they  shall  be  returned  to  the  court  of  jail  de- 
livery. This  last  species  of  depositions,  if  the  deponent 
should  die  between  the  time  of  examination  and  the  trial 
of  the  prisoner,  may  be  substituted  in  the  room  of  viva  voce 
testimony,  which  the  deponent,  if  living,  could  alone  have 
given,  and  is  admitted  of  necessity  as  evidence  of  the  fact."t 
The  same  point  we  have  in  Hawkin's  PL  Cr.,  b.  2,  c.  46  §  15, 
to  the  effect  that  the  depositions  of  a  witness,  taken  upon 
oath,  in  the  presence  of  a  prisoner  who  has  been 
brought  before  the  magistrate  on  a  charge  of  felony, 
may  be  given  in  evidence  on  the  trial  of  an  indictment  for 
the  same  felony,  if  it  be  proved  on  oath,  to  the  satisfaction 
of  the  court,  that  the  informant  is  dead,  insane,  or  not  able 
to  travel,  or  that  he  is  kept  away  by  the  means  and  con- 
trivance of  the  prisoner. 

It  seems,  however,  to  be  very  doubtful  whether  the  mere 

*  1  vol.,  Phillips  on  Evidence,  368. 
f  See  Code,  §  8,  subd.  3. 


b9 

casual  and  temporary  inability  of  the  witness  to  attend  in  a 
criminal  case,  be  sufficient  ground  for  admitting  his  deposi- 
tion, which  affords  evidence  of  a  nature  much  less  satis- 
factory than  the  testimony  of  a  witness  examined  viva  voce  in 
court,  and  which  might  be  procured  at  another  time  if  the 
trial  were  to  be  postponed.  It  is  true  that  the  prisoner  had 
the  power  to  cross-examine  the  witness,  but  this  was  at  a  time 
and  under  circumstances  very  disadvantageous  to  the  j)rison- 
er.  To  warrant  such  evidence  it  is  essential  to  prove  by  the 
justice,  coroner  and  his  clerk,  etc.,  that  the  depositions  con- 
tain the  substance  of  the  information  on  oath.  It  is  not 
necessary  to  prove  that  the  depositions  were  signed  by  the 
witnesses.  Parol  proof  will  not  be  permitted  to  reform 
papers  offered  in  the  examination  before  the  committing 
magistrate.*  When  the  examination  is  produced  and  the 
magistrate  swears  that  it  was  taken  in  pursuance  of  the 
statute,  and  nothing  appears  to  the  contrary,  it  may  be  pre- 
sumed that  all  the  necessary  forms  were  duly  observed.f 

It  seems  that  a  simple  offer  to  retake  examinations  will 
not  aid  a  defective  or  irregular  one,  but  all  examination 
in  such  cases  should  be  de  novo. 

*  1  PhU.  Ev.,  113,  114,   370. 

f  The  People  vs.  Moore,  15  Wend. ,  419. 


90 


CHAPTEE  III. 

WHEN  AND  HOW  DETENTION  OF  PRISONER  PENDING  EXAMINATION. 

Section  79.  Detention  of  Prisoner. 

a.  Offenses  against  the  General  Government 

and  other  States. 
I.  The  Code. 

c.  City  of  New  York. 

d.  Other  States. 

80.  Whether  Remand  may  be  Verbal  or  should 
be  in  Writing. 
a.  The  Code. 
6.  City  of  New  York, 
c.  Other  States. 


§  79.  Detention  of  Prisoner. 

A  prisoner  is  entitled  to  a  prompt  hearing. 

Article  6  of  the  Amendments  to  the  Constitution  of  the 
United  States  provides  as  follows  : 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial  by  an  impartial 
jury." 

This  guarantee  clearly  imposes  a  duty  on  all  committing 
officers  to  proceed  through  all  the  stages^prior  to  trial, 
without  unjustifiable  delay. 

The  Revised  Statutes  provide  likewise  that  the  magistrate 
"  shall  proceed  as  soon  as  may  be."  *  There  are  similar 
provisions  in  other  States.t 

Where  a  party  is  arrested  and  brought  before  a  justice, 
he   must    be    either    discharged,   bailed    or    committed,^ 

*  Part  IV.,  chap.  ii..  title  ii.,  §  13. 

t  Arch.  Cr.  Prac.  and  PI.,  vol.  1,  p.  134,  note. 

X  Hale,  P.  C,  chap.  14,  vol.  2,  120. 


91 

but  the  justice  may  detain  the  accused  for  a  reasonable 
time  for  examination,  and  may  be  justified  in  ordering  the 
prisoner  to  be  detained  to  enable  the  prosecutor  to  bring 
his  witnesses.  The  arresting  officer,  however,  has  no  such 
power.* 

When  a  commitment  is  for  an  unreasonable  time  it  is  the 
better  opinion  that  the  commitment  is  void  from  the  begin- 
ning and  ought  not  to  be  considered  void  pro  tanto  only, 
i.  e.,  for  so  much  of  the  time  as  was  unreasonable,  for  if 
the  magistrate  commit  for  an  unreasonable  time,  he  thereby 
does  an  act  which  he  is  not  authorized  by  law  to  do.t 

In  one  case,  the  commitment  for  re-examination  was  for 
a  period  of  fourteen  days,  and  though  it  was  ban  i  Jide  and 
without  any  improper  motive,  the  justice  was  held  respon- 
sible. | 

A  prisoner  in  the  presence  of  the  justice  was  ordered  by 
the  latter  into  the  custody  of  the  constable  until  the  next 
day.  Held,  not  a  justifiable  act  without  good  cause.  § 
And  a  magistrate  was  held  liable  for  false  imprisonment 
who,  in  meeting  a  constable  having  a  prisoner  in  custody 
on  his  way  to  court,  said,  "  Take  him  back,  I  will  see  him 
to-morrow."  ||  A  magistrate  has  no  authority  to  order  a 
person  accused  of  a  criminal  offense  to  be  committed  until 
a  subsequent  day  for  examination,  without  the  accused  be- 
ing first  brought  before  him.TT  A  mayor,  who  was  likewise 
a  justice  of  the  peace,  detained  a  prisoner  in  his  house 
for  eighteen  days,  to  examine  him  and  another  concerned  in 
the  robbery,  who  was  not  apprehended.  Such  action  was 
adjudged  improper  in  a  suit  against  the  mayor.  Three 
days  was  in  that  case  declared  to  be  the  limit  of  the  law.** 

♦Wright  vs.  Court  and  others,  4  B.  &  C.  Rep.,  p.  598;  3  Davis'  Rep.' 
184,  and  id.  Index,  Commitment. 

t  Davis  vs.  Copper,  10  B.  &  C,  38  ;  Rex  vs.  Gooding,  Burns  Justice,  24th 
ed.,  vol.  1,  p.  1009. 

X  Davis  vs.  Copper,  10  B.  &  C,  38. 

§  Boughton  vs.  IMulshoe,  Moore,  408. 

I  Edwards  vs.  Ferris,  7  C.  &  P.,  543. 

1[  Pratt  vs.  HUl  and  others,  16  Barb.,  303. 

**  Scavage  vs.  Taltham,  Cro.  Eliz.,  829. 


92 

But  it  seems  that  tlie  time  for  which  a  party  may  be  com- 
mitted for  re-examination  may  vary  according  to  circum- 
stances, which  may  become  a  mere  question  of  law,  or  one 
of  mixed  law  and  fact,  on  suit  being  brought  for  such  deten- 
tion.* 

There  are  many  instances  of  prisoners  being  detained 
more  than  twenty  days  between  their  first  being  brought 
before  a  justice  and  their  commitment  for  trial,  and  being 
brought  up  for  examination  several  diflerent  days  during 
the  interval. t 

Under  the  statutes,  as  well  as  at  common  law,  the  magis- 
trate will  be  allowed  a  reasonable  time,  before  he  makes  his 
final  decision.:}: 

a.   Offenses  against  General  Government  and  other  States. 

A  commitment  may  be  made  to  enable  the  general  gov- 
ernment to  apply  for  and  take  the  prisoner  into  custody. 
This  has  been  held  of  a  foreign  government,  to  whom  we 
were  bound  only  by  the  law  of  nations.  § 

A  United  States  Commissioner,  but  not  in  the  absence 
of  the  accused,  may  adjourn  the  examination  on  a  criminal 
complaint  to  another  time  and  place.  II 

For  a  crime  against  another  State  a  commitment  may  be 
made  for  a  reasonable  time,  to  give  the  governor  thereof 
notice.! 

h.  The  Code. 

Under  the  Code  the  magistrate  is  directed  to  proceed 
immediately  with  the  examination,  except  that  if  the  de- 
fendant requires  counsel  he  must  wait  a  reasonable  time 
therefor.** 


*  Davis  m.  Copper,  10  B.  &  C. ,  33. 
t  Chitty's  Cr.  L.,  vol.  1,  p.  73. 
Jl  Chit.  Cr.  L.,  72. 

§17  Jolin.  Rep.,  4,  U.  S.  vs.  Lathrop;  11  John  Rep.,  554,  note;  1  Chit. 
C.  L..  73-4;  Muirt'S.  Kaye,  4  Taunt.,  43. 
i  U.  S.  m.  Rundlett,  2  Curtiss  C.  C.  Rep.,  41. 

1  Ex  parte  Smith,  5  Cowen,  276  ;  see  title,  Fugitives  from  Justice,  post. 
**  §  190. 


93 

The  examination  must  be  completed  at  one  session  unless 
the  magistrate,  for  good  cause  shown,  adjourn  it.  The  ad- 
journment cannot  be  for  more  than  two  days  at  each  time, 
nor  more  than  six  days  in  all,  unless  by  consent  or  on  mo- 
tion of  the  defendant.* 

c.   City  of  Neio  Yorh. 

Besides  the  provisions  of  the  Criminal  Code  just  given, 
obtaining  throughout  this  State,  we  find  directions  relating 
to  New  York  City,  that  rules  shall  be  adopted  by  the 
Board  of  Police  Justices  containing,  among  other  regula- 
tions, provisions  for  entering  in  the  books  of  records  of  their 
Police  Clerks  the  reasons  for  any  unusual  delay  in  any  pro- 
ceeding, t 

The  Police  Justices  therein  are  also  prohibited  from 
committing  or  recommitting  any  person  for  examination, 
save  for  necessary  cause,  or  from  adjourning  the  hearing 
upon  any  charge  to  another  day  without  likewise  clearly 
stating  such  necessary  cause,  or  the  suggestion  of  the 
reason  for  such  adjournment  upon  such  records.^ 

d.   Other  States. 

In  Texas,  the  examination  may  be  adjourned  for  a  reason- 
able time  to  procure  testimony. 

In  Maiue,Virginia  and  Wisconsin  the  magistrate  is  author- 
ized to  adjourn  the  examination  without  the  consent  of  the 
person  charged,  from  time  to  time,  not  exceeding  ten  days 
at  one  time.  § 

In  Michigan,  the  examination  may  be  adjourned  from 
time  to  time,  without  the  consent  of  the  accused,  and  to  the 
same  or  a  different  place  in  the  county,  as  shall  be  deemed 
necessary.  11  

*  §  191. 

t  L.  1873,  chap.  538,  §  13,  sub.  7. 
ilb.,  subd.  8. 

§  Rev.  Sts.  of  Maine,  c.  171,  §  9 ;  Code  of  Va.,  tit.  55,  c.  204,  §  8 ;  Rev. 
Sts.  of  Wis.,  c.  145,  §  9. 

II  Rev.  Sts.  of  Mich.,  chap.  163,  §  10. 


94 


§  80.    Whetlier  Remand  may  he  Verbal  or  shall  he  in  Writing. 

At  common  law,  the  prisoner  may  be  verbally  remanded 
from  time  to  time  ;  a  written  warrant  or  authority  is  un- 
necessary.* A  commitment  for  a  reasonable  time  though 
not  in  writing  is  good.t  It  is  usual,  however,  to  make  out 
a  written  warrant  for  examination  or  re-examination  till 
another  day,  which  need  not  state  the  crime  of  which  the 
party  is  accused,  for  it  may  not  always  be  proper  to  let 
the  peace  officer  know  the  cause  of  detention.:}: 

By  the  English  statute,  "  if  from  the  absence  of  witnesses, 
or  from  any  other  reasonable  cause,  it  shall  become  neces- 
sary or  advisable  to  defer  the  examination  or  further 
examination  of  the  witnesses  for  any  time,"  the  party 
accused  may,  by  warrant,  be  remanded  for  a  time  "  not 
exceeding  eight  clear  days  *  *  *  If  the  remand  be  for 
a  time  not  exceeding  three  clear  days  "  it  may  be  verbally 
into  the  hands  of  his  custodian,  but  the  time  of  remanding 
so  fixed  may  be  terminated  by  the  committing  justice.§ 

a.  The  Code. 

This  Code  directs  that  if  an  adjournment,  pending  the 
-examination,  be  had  for  any  cause,  and  the  defendant  is  not 
bailed  or  does  not  make  a  deposit  of  money  as  provided 
for  therein,  ||  he  must  be  committed  by  an  indorsement 
on  the  warrant  of  arrest,  to  the  following  effect :  "  The 
within  named  A.  B.,  having  been  brought  before  me 
under  this  warrant,  is  committed  for  examination,  to  the 
sheriff  of  the  county  of  ,"  or  in  the  city  and 

county  of  New  York,  "  to  the  keeper  of  the  city  prison  of 
the  city  of  New  York.  "  1" 


*  Arch.  Cr.  Prac.  and  PI.  vol,  i.,  p.  134,  note  and  cases  there  cited. 

f  Moore  408,  Burns  Justice,  vol.  1,  p.  1009. 

X  Chitty's  Grim.  L.,  p.  73  ;   see  2  Hale,  P.  C.  130,  121. 

§  11  &  12  Vict.,  c.  42,  §21. 

1  §§  586-589. 

1  §§  192,  193. 


95 


b.  Neio  York  City. 

In  addition  to  tlie  provisions  of  the  Code  just  given,  de- 
termining the  manner  of  committing  for  examination,  in  the 
city  of  New  York  the  reason  for  any  unusual  delay  must 
be  entered  on  the  books  of  record  to  be  provided  for  that 
purpose  by  the  Police  Justices,  and  no  person,  as  before 
stated,  shall  be  committed  or  recommitted  for  examination, 
save  for  necessary  cause,  without  clearly  stating  such  ne- 
cessary cause.* 

c.    Other   States. 

In  Michigan  the  remand  may  be  verbal  or  by  warrant.f 
In  Yirginia,t  Wisconsin,  §  and  Maine,  ||  statutes  provide  for 
a  remand  by  warrant.! 

*  L.,  1873,  chap.  538,  §  13,  subd.  7  and  8. 

f  Rev.  Stat.  Mich.,  c.  168,  §  1. 

t  Code  of  Va.,  tit.  55,  c.  204,  §  10. 

§  Rev.  Stat,  of  Wis.,  c.  145,  §  11.  '; 

li  Rev.  Stat,  of  Maine,  c.  171,  §  11. 

1  Arch.  Cr.  Pr.  &  PI.,  vol.  1,  p.  185,  note. 


96 


CHAPTEE  IV. 

WHERE   TO   BE   DETAINED. 

Section  81.  General  Kemarks. 

82.  How  in  England. 

83.  New  York  State. 

a.  Offenders  against  the  United  States. 
h.  Bailing  Prisoners  pending  Examination. 

84.  New  York  City. 


§  81.   General  Remarks. 

The  commitment  pending  an  examination,  as  also  for 
trial,  like  the  arrest,  is  with  a  view  solely  to  prevent  an 
evasion  by  the  accused  party  of  the  penalty  of  the  law  that 
may  be  adjudged  against  him. 

It  is  not  in  the  nature  of  punishment,  for  all  are  to  be 
deemed  innocent  until  proven  to  be  guilty. 

The  same  considerations  that  apply  to  bail — the  gravity 
of  the  offense,  the  stage  and  force  of  the  proofs  and  the 
character  of  the  prisoner — will  influence  the  disposition  to 
be  made  of  him. 

The  manner  of  detention  has  therefore  been  varied  and 
should  be  more  secure  the  further  the  proceeding  advances 
towards  conviction.  Cases  may  arise  when  detention  pend- 
ing the  examination  would  amount  to  an  abuse  of  power. 

§  82.  Hoiu  in  England. 

The  prisoner  may  be  continued  in  the  custody  of  the 
officer  or  may  be  detained  in  the  justice's  house  or  com- 
mitted to  some  near  safe  place  in  custody  till  the  examin- 
ation can  be  taken.* 


*10B.  &C.,  83  and  33. 


97 

By  statute,  lie  may  be  committed  to  the  common  jail,  or 
house  of  correction,  or  other  prison  lock-up  or  place  of 
security  in  the  county,  riding,  division,  liberty,  city,  bor- 
ough or  place  for  which  the  justice  shall  then  be  acting. 
If  the  remand  be  for  a  period  not  exceeding  three  clear 
days,  the  custody  may  be  in  the  constable  or  other  person 
in  whose  custody  such  accused  party  may  then  be,  or  any 
other  constable  or  person  to  be  named  by  the  said  justice.* 

§  83.  New  York  State. 

By  the  laws  of  this  State,  "  the  common  jailsf  in  the  sev- 
eral counties  of  this  State  shall  be  kept  by  the  sheriffs  of 
the  counties  in  which  they  are  respectively  situated,  and 
shall  bemused  as  prisons.":}:  *  *  ^  ^ji^  the  keepers 
of  the  several  county  prisons  shall  receive  and  safely  keep 
every  person  duly  committed  to  their  custody  for  *  * 
examination,  *         *         and   shall  not,  without  lawful 

authority,  let  out  of  prison,  on  bail  or  otherwise,  any  such 
persons."  § 

Boards  of  Supervisors  of  the  various  counties  have 
power  to  provide  jails  and  houses  of  detention.li  Special 
laws  are  not  interfered  with  nor  are  cities  whose  boundaries 
are  the  same  as  those  of  the  county  included. IF 

In  counties  having  no  jails,  those  in  contiguous  counties 
may  be  used  on  compliance  with  certain  conditions.** 

*  11  and  13  Vict.,  c.  42,  §  21. 

f  Originally,  a  jail  seems  to  have  been  a  place  where  persons  were  confined 
to  await  further  proceedings,  e.  g.,  debtors  till  they  paid  their  debts,  wit- 
nesses and  accused  persons  till  a  certain  trial  came  on,  etc. ,  as  opposed  to 
prison,  which  was  for  confinement,  as  punishment,  in  general,  now  there 
is  no  such  distinction,  except  that  the  latter  belongs  to  a  greater  extent  of 
country  ;  thus  we  say  a  State  prison  and  a  county  jail  (Bouvier's  Law  Die, 
vol.  i.,  p.  751). 

X  L.  1847,  chap.  460,  §  1. 

§Ib.,§3. 

II  R.  S.,  Part  i.,  ch.  xii.,  title  ii.,  art.  i.,  §§  14  and  36  ;  L.  1875,  ch.  482,  §  1. 

H  lb. 

**  R.  S.,  Part  iii.,  ch.  vii.,  title  vi.,  art.  ii.,  §  14. 
7 


98 


Civil  and  Criminal  Prisoners  to  be  kept  Separate. 

"  Prisoners  arrested  on  civil  process  shall  be  kept  separ- 
ate and  distinct  from  those  detained  on  a  criminal  charge 
or  conviction,  and  on  no  pretense  whatever  shall  prisoners 
on  civil  and  criminal   process  be   put  or  kept  in  the  same 

room. 

And  persons  detained  for  trial  must  not,  and  m  com- 
pliance with  the  spirit  of  the  law  those  detained  for  exam- 
ination should  not,  be  kept  or  put  in  the  same  room  with 
convicts  under  sentence.t 

Neither  should  male  and  female  prisoners  (except  hus- 
band and  wife),  be  put  or  kept  in  the  same  room 4 

a.  Offenders  against  the  United  States. 
The  keeper  of  each  county  prison  is  to  receive  every  per- 
son duly  committed  thereto,  for  any  offense  against  the 
United  States,  and  to  confine  such  person  in  the  prison 
until  he  shall  be  duly  discharged ;  tliQ  United  States  sijp- 
porting  such  person  during  his  confinement.  § 

h.  Bailing  Prisoners  pending  Examination. 
In  any  examination  before  a  police  justice,  or  justice  of 
the  peace  of  any  city  or  town,  of  any  person  charged  with 
an  offense  bailable  by  such  magistrate,  a  recognizance  with 
sufiicient  surety,  by  two  freeholders  or  householders,  resi- 
dents of  the  county,  may  be  taken  pending  such  examina- 
tion. 11 

§  84.  Neio  York  City. 

Places  of  Detention  {Police  Department). 

In  New  York  City,  prior  to  the  arraignment  of  the  ac- 
cused in  Court,  when  his  detention  is  necessary,  before  he 

*  R.  S.,  Part  iii.,  ch.  vii.,  title  vi.,  art.  ii.,  §  8. 

t  1847,  chap.  460,  §  4. 

X  Laws  1847,  chap.  460,  §  5. 

§Ib.,§16. 

i  L.  1876,  chap  21,  p.  15  ;  see  Code,  §  550. 


99 


can  be  taken  before  a  magistrate,  lie  is  confined  in  accord- 
ance witli  the  following  law  : 

"  If  the  arrest  is  made  during  the  hours  that  the  magis- 
trate does  not  regularly  hold  Court,  or  if  a  magistrate  is 
not  holding  Court,  the  defendant  may  be  detained  in  a 
station-house  or  precinct  thereof,  until  the  next  regular 
public  sitting  of  the  magistrate,  and  no  longer."  It  is 
made  likewise  "the  duty  of  the  (Police)  Board,"  from  time 
to  time,  to  j^rovide  suitable  rules  and  regulations  to  pre- 
vent the  undue  detention  of  persons  arrested,  *  *  * 
subject,  however,  to  the  order  of  the  Court  committing  the 
person  arrested."* 

Station-houses  under  the  control  of  the  police  authorities 
for  the  temporary  detention  of  persons  arrested  for  ofi'enses, 
are  provided  for  by  law.f  The  office  of  the  Superintendent 
of  Police  may  likewise  be  used  for  the  detention  of  accused 
persons.:}: 

All  magistrates,  when  committing  witnesses  in  default  of 
bail,  shall  commit  them  to  such  house  of  detention  for  wit- 
nesses as  is  provided  by  the  Board  of  Police.  § 

Places   of  Detention  {Department   of  Public   Charities   and 

Correction).  \\ 

The  "Halls  of  Justice"  fronting  on  Centre  street  and 
designated  the  City  Prison,*|[  and  the  prisons  attached  to 
the  police  courts,  declared  to  be  portions  of  the  City  Prison, 
are  used  for  the  detention  of  persons  pending  examina- 
tion.** 

It  is  made  the  duty  of  the  keeper  of  the  City  Prison  to 
classify  and  sej)arate    iDrisoners  committed  for  examination 

*  L.  1870,  ch.  137, §  57. 

t  L.  1860.  chap.  259,  §g  20,  58. 

IRev.  Corp.  Ord.  1866,  p.  457,  chap.  50,  §  10. 

§  L.  1870,  ch.  137,  §  59. 

11  L.  186C,  chap.  510,  §  4. 

1"  Corp.  Ord.,  chap,  xiv.,  title  i.,  art.  ii.,  §  17  (Rev.  Corp.  Ord.,  1845). 

**  L.  1824,  ch.  213,  §  3. 


100 

and  trial,  and  in  respect  thereto  to  obey  the  instructions  of 
the  Special  (Police)  Justices.* 

The  Board  of  Supervisors  are  authorized  to  procure 
places   for  holding  courts  in   the  City  and  County  of  New 

Yorkt 

Sometimes  the  acccused  person,  after  his  arraignment 
before  the  magistrate,  is  remanded  to  the  custody  of  the 
officer  bringing  him,  who  confines  his  prisoner  at  a  station- 
house.  The  Code  contemplates  that,  instead  of  such  dis- 
position, in  every  case  the  prisoner  be  committed  to  the 
keeper  of  the  City  Prison,  in  New  York  City,  and  to  the 
sheriff  in  all  other  parts  of  the  State.  | 

When  the  defendant  is  held  to  answer  at  the  conclusion  of 
the  examination,  he  is  committed  to  the  City  Prison,  in  New 
York  City ;  elsewhere  to  the  sheriff  of  the  county. 

*  Corp.  Ord.,  chap,  xiv.,  title  i.,  art.  u.,  §  18  (Rev.  Corp.  Ord.,  1845). 
t  L.  1861,  chap.  42. 
i  Code,  §  193. 


T='J^TIT    "V". 

ORDER  AND  MANNER  OF  PROCEEDING  ON  EXAM- 
INATION AFTER  ARREST. 


Chapter  I.  The  Prosecution. 
II.  The  Defense. 

III.  Separation  of  Witnesses. 

IV.  Waiving  Examination. 


CHAPTER    I. 

THE   PROSECUTION. 

Section  85.  Order  of  Proceeding. 
a.  The  Code. 

86.  Witnesses,  how  to  be  Examined. 

87.  Prisoner  to  be  Present. 

a.  With  Counsel  if  desired. 

88.  How  Depositions  to  be  taken  down. 

a.  The  Code. 


§  85.   Order  of  Proceeding. 

When  the  person  accused  and  the  witnesses  to  be  ex- 
amined are  before  the  magistrate,  he  is  to  examine  the 
complainant  and  the  witnesses  produced  in  support  of  the 
prosecution,  on  oath,  in  the  presence  of  the  prisoner,  in 
regard  to  the  offense  charged.* 

*  Nun.  and  Walsh,  305. 


102 

The  accused  and  his  witnesses  are  next  to  be  heard,  the 
former,  however,  not  on  oath.  But  of  the  defense  later  on 
(chapter  II.  of  this  Part). 

In  most  if  not  all  the  States,  the  manner  of  conducting 
examinations  is  provided  for  by  statute.* 

a.   The  Code. 

On  the  prisoner  being  brought  before  a  magistrate  upon 
arrest,  either  with  or  without  a  warrant,  and  preliminary 
to  entering  on  the  examination,  the  magistrate  must  inform 
him  of  the  charge  against  him  and  of  his  right  to  the  aid 
of  counsel  in  every  stage  of  the  proceedings.! 

The  defendant  must  be  allowed  a  reasonable  time  to  send 
for  counsel,  and  the  magistrate  must,  upon  the  request  of 
the  defendant,  require  a  peace  officer  to  take  a  message  to 
such  counsel  in  the  town  or  city,  as  the  defendant  may 
name,  and  such  officer  must  without  delay  and  without  fee 
perform  that  duty.:{: 

"The  magistrate,  immediately  after  the  appearance  of 
counsel,  or  if  none  appear  and  the  defendant  require  the 
aid  of  counsel,  must,  after  waiting  a  reasonable  time  there- 
for, proceed  to  examine  the  case,  unless  the  defendant 
waives  examination  and  elects  to  give  bail,  in  which  case  the 
magistrate  must  admit  the  defendant  to  bail,  if  the  crime 
is  bailable,  as  provided  in  §  210  "  (post,  Part  VII.,  ch.  IX).|| 

"  At  the  examination,  the  magistrate  must,  in  the  first 
place,  read  to  the  defendant  the  depositions  of  the  witnesses 
examined  on  the  taking  of  the  information,  and  if  the  de- 
fendant request  it  or  elects  to  have  the  examination,  must 
summon  for  cross-examination  the  witnesses  so  examined, 
if  they  be  in  the  county,  and  must  also  issue  subpoenas  for 
additional  witnesses  required  by  the  prosecutor  or  the 
defendant."^ 

This  applies  obviously  only  to  arrests  by  warrant. 

*  1  Arch.  Cr.  L.  and  Pr.,  132,  139,  140. 
+  §  188.  X  §  188. 

i  §  190.  1  §  194. 


103 

"The  witnesses  must  be  examined  in  tlie  presence  of  the 
defendant  and  may  be  cross-examined  in  his  behalf."  " 

This  latter  direction  refers  to  the  mode  of  examining 
the  witnesses  when  the  arrest  is  without  a  warrant ;  for, 
when  the  arrest  is  by  warrant,  the  depositions  of  the  wit- 
nesses examined  on  the  taking  of  the  information  stand 
for  their  direct  examination. 

Proceedings  before  Magistrate  after  the  Coroner  s  Inquisition 
not  Applicable  to  New  York  City.-[ 

If  the  defendant  be  arrested  before  the  Coroner's  inquisi- 
tion can  be  filed,  as  provided  for  by  the  Code,^  the  Coroner 
must  deliver  it  with  the  testimony  to  the  magistrate  before 
whom  the  defendant  is  brought,  as  provided  by  the  Cor- 
oner's warrant,§  who  must  return  it  with  the  depositions 
and  statement  taken  before  him,  in  the  manner  prescribed 
by  §  221  of  the  Code  (post,  §  104).  || 

"  The  magistrate,  when  the  defendant  is  brought  before 
him,"  under  the  Coroner's  warrant,  "  must  proceed  to  ex- 
amine the  charge  contained  in  the  inquisition  and  hold  the 
defendant  to  answer,  or  discharge  him  therefrom  in  the 
same  manner,  in  all  resj)ects,  as  upon  a  warrant  of  arrest 
on  an  information."^ 

Should  the  testimony  of  the  witnesses  examined  before 
the  Coroner's  jury  and  the  inquisition  thereon  have  been 
filed  by  the  Coroner  with  the  Clerk  of  the  Court  of 
Sessions  of  the  county,  or  of  a  city  court,  having  power  to 
inquire  into  the  offense  by  the  intervention  of  a  grand  jury, 
as  the  Coroner  is  obliged  to  do  forthwith  in  case  the  de- 
fendant is  not  arrested  before  the  same  can  be  filed,**  the 
clerk  with  whom  the  inquisition  is  filed  must,  without 
delay,  furnish  to  the  magistrate  a  certified  copy  of  it,  and 
of  the  testimony  returned  therewith. ft 

*  §  195.  t  L.  1881,  ch.  465,  §  7. 

X  §  778.  §  Code,  §  781. 

U  Code,  §  779.  IT  lb.,  §  783. 

**  lb.,  §§778  and  779.  ttlb.,§784.  } 


104 


§  86.    Witnesses,  lioiv  to  he  Examined. 

The  witnesses,  with  the  exception  of  the  defendant,  are  tO' 
be  examined  under  the  same  rules  as  govern  on  the  trial. 

They  should  be  first  sworn  and  then  examined,  instead  of 
taking  the  examination  first  and  then  swearing  them  to  the 
truth  of  the  statement.* 

§  87.  Prisoner  to  he  Present. 

The  defendant  must  be  present,  and  have  an  opportunity 
to  cross-examine,  when  the  direct  examination  is  closed, 
and  if  that  right  is  not  enjoyed,  the  deposition  will  not  be 
evidence  on  the  trial. t 

The  defendant,  by  the  Constitution  of  the  United  States,:}: 
is  to  be  confronted  with  the  witnesses  against  him. 

It  is  not  sufiicient  if  the  deposition  be  read  over  to  the 
prisoner.  The  prisoner  shall  be  present  while  the  witness 
actually  delivers  his  testimony,  so  that  he  may  know  the  pre- 
cise words  he  uses,  and  observe  throughout  the  manner  and 
demeanor  with  which  he  gives  his  testimony.  Therefore, 
in  a  certain  case,  that  part  of  the  testimony  taken  on  an 
examination,  which  was  read  OA^er  to  the  prisoner  but  not 
heard  by  him  was  not  admitted,  but  the  subsequent  part  at 
which  the  prisoner  was  present  was  admitted.  § 

Richards,  Chief  Baron,  thought  if  the  witness  was 
resworn  and  reasserted  what  he  had  before  said  by 
assenting  to   the  deposition  when  slowly  read  over  to   him. 

*  King  V.  Kiddy,  4  Dowl.  &  Ryl.,  734. 

f  King  m.  Paine,  5  Mod.,  163  ;  Woodcock's  Case,  1  Leach,  500  ;  Dingler's 
Case,  2  Id.,  561  ;  King  vs.  Callaghan,  1  MacX alley's  Ev.,  385;  Rex  vs. 
Forbes,  1  Holt's  N.  P.,  597,  note  ;  The  State  vs.  Hills,  3  Hill's  Law  Rep., 
So.  Car.,  607  ;  2  Stark.  Evi.,  488-492  ;  2  Hawk  (by  Curwood),  594,  §  24  ; 
2  Russ.  on  Crimes,  660  ;  1  Phil.  Evi.,  369,  372,  ed.  of  1839  ;  Roscoe's  Crim. 
Ev.,  50  and  51;  People  vs.  Restell,  3  Hill,  300;  Bull  N.  P.,  241,242;  1 
Chit.  Cr.  L.,  76,  79  ;  Cowen's  &  Hill's  notes  to  Phil.  Ev.,  938,  note  369^ 
King  vs.  Crowther,  1  T.  R.,  125. 

X  Art.  6,  U.  S.  Const. 

§  York  Spring  Assizes  (1814),  Rex  vs.  Forbes,  1  Holt's  Rep.,  593,  note  ;  see 
King  vs.  Paine,  5  Mod.  163. 


105 

in  the  presence  of  the  prisoner,  the  deposition  woukl  be 
admissible  on  the  trial.* 

The  Chief  Baron's  attention  having  subsequently  been 
called  to  the  foregoing  case,  took  the  opinion  of  the  twelve 
judges  on  the  point  of  law,  by  whom  he  was  sustained,  one 
judge  dissenting. 

In  another  case  the  oath  was  administered  to  the  witness 
before  any  part  of  his  evidence  was  reduced  to  writing. 
The  prisoner  was  brought  into  the  room  after  the  examina- 
tion commenced  and  before  the  last  line  of  the  deposition 
was  taken  down.  The  oath  was  again  administered  to  the 
witness  in  the  presence  of  the  prisoner,  and  the  whole  of 
what  had  been  previously  written  down  from  the  mouth  of 
the  witness  was,  in  his  presence,  read  over ;  the  witness 
was  then  further  examined.     Held  regular. t 

Chitty  says, I  that  "  if  the  original  information  and 
evidence  taken  before  the  warrant  was  issued  contain 
a  complete  case,  it  is  the  practice,  after  reswearing 
the  accused  and  his  witnesses,  to  read  over  their  former 
depositions  in  their  presence,  and  that  of  the  prisoner,  and 
to  state  to  the  latter  that  he  is  at  liberty  to  ask  the  prose- 
cutor and  witnesses  any  questions  respecting  the  charge 
against  him.''  This  practice,  may  be  tolerated,  though  it 
clearly  is  not  the  most  proper  course.§  The  original  com- 
plaint made  in  a  criminal  proceeding  for  the  arrest  and 
examination  of  an  alleged  offender,  has  spent  its  force  when 
the  warrant  of  arrest  is  issued.  || 

a.    With  Counsel,  if  desired. 
Primitive  Practice. 

The  examination  in  its  primitive  state  was  not  in  the 
nature  of  a  judicial  inquiry,  and  counsel  for  the  prisoner 

*  Eeg.  vs.  Smith,  1  Holt's  Rep.,  614. 

f  3  Hill,  289. 

X  1  Chitty's  Crim.  Law,  80. 

§  3  Hill,  802. 

I  Redmond  vs.  State,  13  Kansas,  p.  172. 


106 

had  no  right  to  appear  and  represent  him.  It  is  said  if 
such  right  were  conceded  there  could  never  be  any  private 
examinations,  which  were  very  frequent  then,  and  if  any 
one  had  a  right  to  be  present,  intelligence  of  what  passed 
could  be  conveyed  to  accomplices.* 

Present  Vieios. 

"  That  in  every  trial,  in  any  court  whatever,  the  party 
accused  shall  be  allowed  to  appear  and  defend  in  person 
and  with  counsel  as  in  civil  actions,"  is  a  right  guaranteed 
by  the  Constitution  of  this  State,t  and  provided  for  in  some 
way  in  all  civilized  countries.  | 

§  88.  Ho20  Depositions  to  he  taken  doivn. 

The  depositions  should  be  taken  as  nearly  as  possible  in 
the  words  used  by  the  witness,  so  that  the  defendant  will 
lose  as  little  as  the  nature  of  the  case  will  permit  by  read- 
ing the  depositions  on  the  trial,  instead  of  having  the  oral 
examination  of  the  witnesses  before  the  jury.  || 

a.   21ie  Code. 

"  The  testimony  given  by  each  witness  must  be  reduced 
to  writing,  as  a  deposition,  by  the  magistrate  or  under  his 
direction,  and  authenticated  in  the  foUoAving  manner  : 

1.  The  authentication  must  state  the  name  and  age  of 
the  witness,  his  place  of  residence,  and  his  business  or 
profession  ; 

2.  It  must  contain  the  questions  put  to  the  witness,  and 
his  answers  thereto  ;  each  answer  being  distinctly  read  to 
him  as  it  is  taken  down,  and  being  corrected  or  added  to, 
until  it  is  made  conformable  to  what  he  declares  to  be  the 
truth ; 

*1  B.  &  C,  pp.  54  and  55. 

t  Const.  N.  Y.,  art.  i.,  §6. 

X  See  Code  on  this  subject,  ante  §  85,  a. 

\  People  vs.  Restell,  3  HiU,  300. 


107 

3.  If  a  question  put  be  objected  to  on  either  side,  and 
overruled,  or  the  witness  decline  answering  it,  that  fact, 
with  the  ground  on  which  the  question  was  overruled  or 
the  answer  declined,  must  be  stated ; 

4  The  deposition  must  be  signed  by  the  witness,  or  if 
he  refuse  to  sign  it,  his  reason  for  refusing  must  be  stated 
in  writing  as  he  gives  it ; 

5.  It  must  be  signed  and  certified  by  the  magistrate."* 

The  evil  proposed  to  be  corrected  by  the  foregoing  pro- 
vision is  well  set  forth  in  the  following  note  contained  in 
the  Eeport  of  the  Commissioners  submitting  a  Criminal 
Code  in  December,  1849  : 

"In  taking  down  the  testimony  of  the  witnesses,  the 
practice  has  been  very  common,  to  take  such  portions  of 
their  statements  as  the  magistrate  deems  material ;  omit- 
ting entirely  the  questions  put,  and  professing  to  give 
nothing  more  than  the  substance  of  the  evidence.  When 
it  is  remembered  how  essential  it  is,  in  testing  the  credi- 
bility of  witnesses  who  have  been  previously  examined,  to 
point  with  certainty  to  their  former  statements  on  oath, 
relating  to  the  same  subject,  and  how  important  this  right 
may  become  to  the  people  as  well  as  to  the  defendant,  it 
will  be  readily  admitted  that  the  testimony  in  the  precise 
form  in  which  it  is  given,  leaving  no  room  for  doubt  or 
misconstruction  as  to  its  meaning,  should  be  carefully  pre- 
served. Daily  experience  shows  that  in  the  mode  in  which 
depositions  are  taken  by  the  examining  magistrate,  when 
the  attempt  is  made  to  impeach  a  witness  by  the  produc- 
tion of  his  deposition,  nothing  is  more  common  than  his 
escape  from  the  force  of  the  contradiction,  by  his  own 
statement  and  that  of  the  magistrate,  that  the  substance  of 
the  testimony  only,  and  not  the  language  of  the  witness, 
had  been  taken.f 

*  §  204. 

t  Prop3sed  Crim.  Code  (1850),  note  to  §  303,  pp.  95,  96. 


108 


CHAPTEE  11. 

THE  DEFENSE. 

Section   89.  Introductoiy  Remarks. 

90.  Early  Conceptions. 

a.  State's  Evidence. 

91.  Eevised  Statutes  and  other  Provisions. 

92.  The  Spirit  of  the  Examination  of  the  Prisoner. 

93.  Irons  on  the  Prisoner. 

94.  The  Statute  permitting  Prisoner  to  Testify. 

95.  The  Code. 


§  89.   Infrodnctonj  Jtemarl's. 

The  further  back  we  search,  the  greater  will  be  our  sur- 
prise as  to  the  manner  of  conducting  legal  proceedings, 
viewed  from  the  standpoint  of  to-day ;  but  justice  to  each 
age  demands  a  scrutiny  with  reference  only  to  its  past 
If  in  that  view  we  compare  each  mode  of  procedure  with 
the  one  immediately  preceding,  some  innovation  will  be 
found  worthy  of  commendation,  and  the  feeling  of  indigna- 
tion that  possesses  one  in  reading  of  the  cruelties  of  the 
past,  will  resolve  itself  into  one  rather  of  sympathy  for  the 
benighted  races  that  lived  the  best  they  knew  how,  and 
according  to  the  best  understanding  of  the  best  men  of 
their  day. 

In  this  connection  it  must  be  borne  in  mind,  that  while 
the  civil  practice  received  a  powerful  reinforcement  from 
the  Eoman  Law,  the  criminal  procedure  was  less  fortunate. 

Criminal  law  is  not  comprised  in  Justinian's  Institutes, 
the  classical  jurist  having  thought  that  public  law  was 
not  a  fit  subject  for  an  institutional  or  elementary  treatise. 


109 

The  very  short  title,   "  De  Publicis  Judiccis,"  is  the  only 
part  of  this  treatise  which  relates  to  crimes.* 

§  90.  Early  Conceptions. 

The  early  English  trial  by  the  ordeal  and  that  of  battle 
-was  based  on  the  popular  belief  that  Providence  would 
always  intervene  to  save  the  guiltless.  An  accusation  once 
made,  the  presumption  of  guilt  followed,  and  the  prisoner 
must  demonstrate  his  innocence.  This  was  the  basis  of  the 
mode  of  trial.  The  abolition  of  the  ordeal  and  the  disuse 
of  the  trial  by  battle  was  an  abandonment  of  the  test  of 
innocence  designated  by  superstition.  The  ease  with 
which  suspected  persons,  thereafter  relieved  of  the  neces- 
sity of  appealing  to  superhuman  agencies  or  to  the  God  of 
battles,  might  clear  themselves  by  human  testimony,  was 
not  relished  by  the  spirit  of  the  times.  If  the  victim  could 
not  be  convicted  by  a  ceremony  certain  to  be  fatal  to  his 
hopes  unless  released  by  corruption  in  the  administration 
of  the  tests,  then  some  other  way  had  to  be  devised  to 
prove  that  an  accused  person,  if  it  was  so  desired,  must  be 
guilty. 

"  It  was  a  natural  transition  from  force  as  a  demonstra- 
tion of  guilt,  to  force  applied  to  compel  confession  of  guilt. 
The  physical  tests  conceived  in  superstition  gave  way  to 
force,"  and  for  the  purpose  of  extorting  a  confession  from 
an  accused  person  torture,  as  by  water  or  fire,  by  the  boot 
or  thumbkin,  or  by  the  rack  or  wheel,  was  resorted  to. 

On  "  the  depositions  of  approvers  extorted  in  goal  by 
threats  or  by  torture,  or  the  criminal's  own  confession,  on 
the  rack  or  in  answer  to  a  judge's  examination,  must  have 
been  the  evidence  upon  which  men  were  hanged  and  women 
•were  burnt."  t 

In  the  reign  of  John  some  prisoners  made  the  experiment 
of   standing  mute  when  brought  before  the  justices,  and 

*  Student's  Edition,  pp.  370,  371,  Campbell's  Roman  Law,  156. 
f  Pike's  Hist,  of  Crime,  vol.  1,  p.  387. 


110 

their  fate  was  the  same  as  if  they  had  been  convicted  by 
the  "judgment  of  God."  Then  a  year  or  two  later  such 
accused  were  sent  to  prison /orie  et  dure,  which  about  the 
reign  of  Henry  IV.  was  transformed  into  the  '' peine  forte 
et  dure,''  or  torture  of  the  press.* 

It  has  indeed  been  denied  that  the  use  of  torture  was 
known  to  the  English  law.  That  it  was  known,  however, 
is  certain,  but  it  was  not  legally  permitted  except  by  license 
from  the  king  or  council.  It  could  be  applied  by  order  of 
a  judge  to  make  a  mute  prisoner  plead  or  to  pimisli  him 
for  not  pleading,  t 

Macaulay  says  that  "  torture,  which  had  always  been  de- 
clared illegal,  and  which  had  recently  been  declared  illegal 
even  by  the  servile  judges  of  that  age,  was  inflicted  for  the 
last  time  in  England  in  the  month  of  May,  1640." 

a.  State's  Evidence. 

A  curious  custom,  peculiar  to  the  English  jurisprudence, 
allowed  a  man  in  the  thirteenth  century  indicted  for  a  capi- 
tal offense  to  turn  "  approver,"  or  king's  evidence,  by 
confessing  the  crime,  and  charging  or  appealing  any  one  he 
chose  as  an  accomplice  ;  but  before  receiving  a  pardon  he 
was  obliged  to  pledge  himself  to  convict  his  accomplice  or 
accomplices,  if  required,  by  the  duel;  this  appeal  was  usually 
settled  by  the  single  combat.:}: 

§  91.  Revised  Statutes  and  other  Provisions. 

The  Eevised  Statutes  provide  that  the  magistrate  shall, 
after  the  examination  of  the  complainant  and  his  wit- 
nesses, inform  the  prisoner  of  the  charge  made  against 
him,  and  give  him  a  reasonable  time  to  send  for  and 
advise  with  counsel ;  then  after  further  informing  him 
that  he  is  at  liberty  to  refuse  to  answer  any  question  that 

*  Pike's  Hist,  of  Crime,  vol.  1,  p.  210. 

t  lb. ,  vol  2,  pp.  8(5  and  87. 

X  Bracton,  lib.  iii.,  tract,  ii.,  cap.  33,  §  2,  and  34,  §  2. 


HI 

may  be  put  to  liim,  tlie  magistrate  shall  proceed  to  examine 
tlie  prisoner  in  relation  to  the  offense  charged,  not  on  oath, 
before  the  witnesses  for  the  defense  are  produced,  at  which 
examination  neither  the  witnesses  produced  on  the  part 
either  of  the  prisoner  nor  of  the  prosecution  shall  be  pres- 
ent. The  counsel  of  the  prisoner,  if  desired,  may  be 
present  throughout  the  whole  examination.* 

As  to  what  extent  these  provisions  are  aflected  by  those 
of  the  Code  a  comparison  with  the  latter  (post,  §  95)  will 
determine. 

When  Examination  of  Defendant  Unnecessary. 

As  has  been  heretofore  indicated,  a  magistrate  is  not 
required  to  take  the  examination  of  a  prisoner  charged  with 
misdemeanor,  except  where  such  magistrate  shall  deem 
it  material  so  to  do,  or  where  such  examination  shall  be 
required  by  the  prisoner.f 

It  is  likewise  not  necessary  for  any  magistrate  to  take  the 
examination  of  any  person  brought  before  him,  charged 
with  an  offense  triable  before  such  magistrate,  in  any  case 
where  such  person  shall  elect  to  be  tried  before  him,tor  at 
Special  Sessions  outside  of  New  York  County, §  nor  when 
he  waives  his  examination,  which  he  can  always  do.  || 

§92.   The  Spirit  of  the  Examination  of  the  Prisoner. 

The  nature  of  this  examination  of  the  prisoner  is  pecu- 
liar, as  will  be  seen.  The  mode  in  which  it  is  to  be  conducted 
would  better  be  understood  were  the  statute  to  read  "  that 
the  magistrate  shall  then  give  the  prisoner  a  hearing,"  or 
"  hear  any  statement  he  may  choose  to  make." 

The  spirit  of  this  examination  is  well  set  forth  by  Chitty 
in  these  words  : 

"  At  the  common  law,  the  maxim,  nemo  tenebatur  jprodere 
se  ipsum,  prevailed  in  its  full  strictness,  and  the  guilt  of  an 

*  Part  iv.,  chap,  ii.,  title  ii.,  §§  14-18. 

f  Laws  1830,  ch.  320  ;  §  60 ;  R.  S.,  Part  iv.,  ch.  ii.,  title  ii.,  §  23. 

X  Laws  1845,  ch.  180,  §  17 ;   R.  S.,  Part  iv.,  ch.  ii .  title  ii.,  §27. 

§  Code,  §  732. 

I  Code,  §196. 


113 

offender  was  not  to  be  wrung  out  of  himself,  but  rather  to 
be  discovered  by  other  means  and  other  men"*  and  though 
his  examination  is  authorized,  it  is  "  not  compulsory  on 
the  prisoner  to  accuse  himself.  At  common  law,  his  volun- 
tary confession  was  always  available  in  evidence  against  him. 
The  examination  has  been  considered  rather  as  a  privilege 
in  favor  of  the  party  accused,  afforded  by  law  for  the  bene- 
fit of  an  innocent  man,  who,  perhaps,  may  on  examination 
clear  himself  from  suspicion,  and  then  he  will  immediately 
regain  his  freedom,  than  as  an  additional  periL"t  And, 
confirmatory  of  this  theory,  we  have  the  case  wherein  a 
prisoner's  examination  before  a  magistrate  who  committed 
Mm  was  produced,  and  on  being  examined  in  relation 
thereto  the  magistrate  stated  that  he  had  examined  the 
prisoner  at  a  considerable  extent,  in  the  same  manner  as 
he  was  accustomed  to  examine  a  witness.  .Richards,  Lord 
C.  B.,  in  rejecting  this  examination  says  : 

"  I  think  I  am  not  at  liberty  to  suffer  this  examination  to 
l)e  read.  No  matter  whether  a  prisoner  be  sworn  or  not. 
An  examination  of  itself  imposes  an  obligation  to  speak  the 
truth.  If  a  prisoner  will  confess,  let  him  do  so  voluntarily. 
Ask  him  what  he  has  to  say  ?  But  it  is  irregular  in  a 
magistrate  to  examine  a  prisoner  in  the  same  manner  as  a 
witness  is  examined."  X  And  further,  we  recall  the  consti- 
tutional injunction  :  "  No  person  shall  be  compelled  in  a 
criminal  case  to  be  a  witness  against  himself."  § 

The  magistrate  is  not  bound  to  caution  the  prisoner  that 
his  confession  must  be  voluntary  and  that  it  will  be 
evidence  against  him.  ||  But  the  accused  shall  be  informed 
that  he  is  at  liberty  to  refuse  to  answer  any  questions  that 
may  be  put  to  him,l  and  that  he  must  not  expect  any  favor 

*  4  Blackstone,  p.  293  (1792J. 
t  1  Chitty  C.  Law,  page,  83. 
t  Rex  m.  Wilson,  1  Holt's  E.,  597. 

§  Art.  5,  Amendments,  Const.  U.S. ;  N.  T.  Const.,  1846,  art.  i.,   §  6. 
I  People  vs.  Maxwell,  1  Wh.  Cr.  Gas.,  163;    see  People  vs.   McMahon,  2 
Park  Cr.  Rep.,  663  ;  People  vs.  Hendrickson,  1  Park  Cr.  R.,  416. 
IF  R.  S.,  Part  iv.,  ch.  ii.,  title  ii.,  §  15. 


113 


if  he  confesses,  but  tlie  magistrate  ought  not  to  dissuade 
him  from  confession.* 

The  prisoner's  examination  need  not  be  signed  by  him, 
in  order  to  make  it  evidence.f  Therefore  a  confession  of 
guilt  by  a  prisoner  on  his  examination  before  a  magistrate 
may  be  given  in  evidence  on  the  trial,  though  the  magis- 
trate has  neglected  and  the  prisoner  has  refused  to  sign  it. 

§  93.  Irons  on  Prisoner. 

Apj^rehensious  for  the  safety  of  a  prisoner  ought  to  be 
the  only  apology  for  presenting  him  in  irons  before  a  magis- 
trate. 

In  one  case  ;|:  a  distinction  was  taken  between  the  time  of 
arraignment  and  the  time  of  trial,  and  accordingly  the 
prisoner  stood  at  the  bar  in  chains  during  the  time  of  his 
arraignment.     At  the  trial  irons  should  be  removed.  § 

§  94.   The  Statute  Permitting  Prisoners  to  Testify. 

"  In  the  trial  of  all  indictments,  complaints,  and  other 
proceedings  against  persons  charged  with  the  commission  of 
crimes  or  offenses,  and  in  all  proceedings  in  the  nature  of 
criminal  proceedings  in  any  and  all  courts,  and  before  any 
and  all  officers  and  persons  acting  judicially,  the  person  so 
charged  shall,  at  his  own  request,  but  not  otherwise,  be 
deemed  a  competent  witness  ;  but  the  neglect  or  refusal  of 
any  such  person  to  testify  shall  not  create  any  presumption 
against  him.  !l 

Under  the  foregoing,  unless  prohibited  by  the  Code,  by 
implication,  the  prisoner,  if  he  requests  it,  may,  on  the 
examination  before  the  magistrate,  be  sworn  and  examined 

*Rex?)s.  Green,  Neville  &  Manning's  Ma^.  Cases,  vol.  i.,  p.  361. 
f  People  vs.  Johnson,  IWh.  Cr.  Gas.,  193;  Lamb'sCase,  2  Leach,  552,  637, 
overruling  case  in  Starkie's  Rep.,  vol.  2,  p.  484. 

X  Layer's  Case,  A.  D.  1722,  4  Black  Com.,  322  ;  6  St.  Tr.  230. 
§  Bracton,  137;  3  Just.,  34,  35  ;  Lims.,  212  ;  2  Hale,  219  ;  2  St.  X.,  303  ;  2 
Havrk.,  434. 
I!  People  TS.  Brandon,  42  X.  Y.,  p.  265  ;  L.  1869,  oh.  078. 


114 

as  a  witness  on  his  own  behalf,  and  then  will  be  treated  as 
any  other  witness  oflering  himself. 

§  95.   The  Code. 

It  is  enacted  by  the  Code  respecting  the  examina- 
tion of  the  prisoner  and  his  witnesses,  that  "  when  the  ex- 
amination of  the  witnesses  on  the  part  of  the  people  is 
closed,  the  magistrate  must  inform  the  defendant,  that  it  is 
his  right  to  make  a  statement  in  relation  to  the  charge 
against  him  (stating  to  him  the  nature  thereof) ;  that  the 
statement  is  designed  to  enable  liim,  if  he  sees  fit,  to  answer 
the  charge  and  to  explain  the  facts  alleged  against  him  ; 
that  he  is  at  liberty  to  waiye  making  a  statement ;  and  that 
his  waiver  cannot  be  used  against  him  on  the  trial."  ^ 

"  If  the  defendant  waive  his  right  to  make  a  statement,  the 
magistrate  must  make  a  note  thereof,  immediately  following 
the  depositions  of  the  witnesses  against  the  defendant."  t 

"  If  the  defendant  choose  to  make  a  statement,  the  magis- 
trate must  proceed  to  take  it  in  writing,  without  oath,  and 
must  put  to  the  defendant  the  following  questions  only : 

"  What  is  your  name  and  age  ? 

"  Where  were  you  born  ? 

"  Where  do  you  reside,  and  how  long  have  you  resided 
there  ? 

"  What  is  your  business  or  profession  ? 

"  Give  any  explanation  you  may  think  proper  of  the  cir- 
cumstances appearing  in  the  testimony  against  you,  and 
state  any  facts  wdiich  you  think  will  tend  to  your  exculpa- 
tion." X 

"  The  answer  of  the  defendant  to  each  of  the  questions 
must  be  distinctly  read  to  him  as  it  is  taken  down.  He 
may  thereupon  correct  or  add  to  his  answer,  and  it  must 
be  corrected  until  it  is  made  conformable  to  what  he  de- 
clares to  be  the  truth."  § 

*  §  196.  t  §  198. 

t  §  19^-  •   §  §  199. 


115 

"  The  statement  must  "be  reduced  to  writing  by  tlie  magis- 
trate, or  under  his  direction,  and  authenticated  in  the 
following  manner : 

1.  The  authentication  must  set  forth  in  detail  that  the 
defendant  was  informed  of  his  rights,  as  provided  in  section 
196  "  (ante,  this  section),  "  and  that  after  being  so  informed 
he  made  the  statement ; 

2.  It  must  contain  the  questions  put  to  him,  and  his 
answers  thereto,  as  provided  in  sections  198  and  199 " 
(ante,  this  section). 

"  3.  It  may  be  signed  by  the  defendant,  or  he  may  refuse 

to  sign  it ;  but  if  he  refuse  to  sign,  his  reason  therefor  must 

be  stated  as  he  gives  it. 

4.  It  must  be  signed  and  certified  by  the  magistrate."  * 
"  After  the  waiver  of  the  defendant  to  make  a  statement, 

or  after  he  has  made  it,  his  witnesses,  if  he  produce  any, 

must  be  sworn  and  examined."  t 

Copies  of  the  Depositions,  etc. 

The  magistrate  or  clerk  must  furnish  to,  or  permit  to  be 
made  by,  the  defendant  or  his  counsel  a  copy  of  the 
depositions  and  statement,  on  payment  of  fees.  % 

Proceedings  againM  Corporations. 

Corporations  to  be  proceeded  against  by  service  of 
summons  on  information  laid.  As  to  the  form,  service 
thereof,  and  proceedings  thereon,  see  Code,  §§  675-682. 

*§200.  t§201.  t  Code,  §  206. 


no 


CHAPTEK  III. 

§  96.  Separation  of  Witnesses,  etc. 

The  section  of  the  Code  respecting  the  separation  of 
witnesses  is  the  same  as  that  of  the  Eevised  Statutes  on 
the  subject,'--  and  is  as  follows  : 

"  The  witnesses  produced  on  the  part  either  of  the  people 
or  of  the  defendant  cannot  be  present  at  the  examination  of 
the  defendant ;  and  while  a  witness  is  under  examination, 
the  magistrate  may  exclude  all  witnesses  who  have  not 
been  examined.  He  may  also  cause  the  witnesses  to  be 
kept  separate,  and  to  be  prevented  from  conversing  with 
each  other,  until  they  are  all  examined."  t 

This  restriction  on  the  defense  is  an  important  one  and  of 
great  advantage  and  value  to  the  prosecution.  The  prisoner 
is  obliged  thereby  to  make  his  statement  before  hearing  the 
evidence  of  his  witnesses  ;  and  since  the  examination  of  the 
prisoner  is  private,  that  is,  apart  from  all  the  witnesses,  we 
see  that  the  hands  of  the  prosecution  are  further  strength- 
ened by  the  witnesses  for  the  defense  being  put  on  the 
stand  ignorant  of  the  statements  of  the  prisoner.  These 
safeguards,  deemed  proper  in  examinations,  have  not  as 
yet  been  applied  to  criminal  trials. 

While  the  defense  is  thus  controlled,  perfect  freedom  is 
accorded  to  the  people. 

Were  the  complainant's  evidence,  who  usuall}^  has  some 
special  interest  in  a  conviction,  required  to  be  given  pri- 
vately and  before  his  witnesses,  the  prosecution  would  not 
have  any  advantage  over  the  defense  in  this  behalf  and  both 
be  placed  on  the  sanle  footing. 

■""  Part  iv.,  chap,  ii.,  title  ii.,  §  18. 
t  §  302. 


117 

The  jjower  to  exclude  from  hearing  all  witnesses  who 
have  not  been  examined,  if  exercised,  could  be  made  to 
produce  this  result.  The  prisoner  being  necessarily  present 
throughout,  and  exclusion  not  enforceable  against  him 
was  probably  the  reason  for  the  legislative  direction  that 
his  statement  shall  be  taken  privately  and  before  the  evi- 
dence of  his  witnesses. 

The  Code  has  also  the  following  provision  : 

"  The  magistrate  must  also,  upon  the  request  of  the 
defendant,  exclude  from  the  examination  every  person, 
except  the  clerk  of  the  magistrate,  the  prosecutor  and  his 
counsel,  the  attorney  general,  the  district  attorney  of  the 
county,  the  defendant  and  his  counsel,  and  the  officer 
having  the  defendant  in  custody."  - 

The  foregoing  section  is  declared  to  be  in  furtherance  of 
the  spirit  of  the  provision  already  in  existence  relating  to 
the  exclusion  of  witnesses  who  have  not  been  examined, 
and  is  defended  in  this  wise  : 

"  The  policy  of  the  statutes  has  always  been  to  prevent 
the  concocting  of  a  charge  against  a  defendant  upon  col- 
lusive or  false  testimony.  The  law  excludes  the  witnesses 
while  another  witness  or  the  prisoner  is  under  examination, 
with  this  view.  The  object  of  the  rule  may  be  wholly 
defeated,  if,  though  not  present,  one  witness  may  be  in- 
formed of  the  testimony  of  another  by  persons  who  are 
present. 

"  Another  advantage  will  result  from  the  adoption  of 
this  section.  If  the  examination  must  necessarily  be  public 
the  consequence  may  be  that  the  testimony  upon  the  mere 
preliminary  examination  Avill  be  spread  before  the  com- 
munity, and  a  state  of  opinion  created,  which,  in  cases  of 
great  public  interest,  will  render  it  difficult  to  obtain  an 
unprejudiced  jury.  The  interests  of  justice  require  that 
the  case  of  the  defendant  should  not  be  prejudiced  if  it  can 
be  avoided  ;  and  no  one  can  justly  complain,  that  until  he 


§203. 


118 


is  put  upon  his  trial,  the  dangers  of  this  pre-judgment  are 
obviated. 

"  To  guard  the  rights  of  the  defendant  against  a  secret 
examination,  the  section  provides  that  it  shall  not  be  con- 
ducted in  private,  unless  at  his  request."  " 

We  have  been  taught  that  a  free  and  open  administration 
of  justice  will  preserve  it  in  its  purity  and  efficiency.  This 
spirit  will  regard  with  regret  that  any  one  should  have  it 
within  his  power  to  compel  a  secret  judicial  hearing  fraught, 
as  experience  has  shown  it  must  be,  witli  great  danger  and 
having  in  its  favor  very  doubtful  advantages. 

*  Note  to  §  203.     Revisers'  Report  Cr.  Code  (1850). 


lU) 


CHAPTER  IV. 


WAIVING   EXAMINATION. 


Section   97.  General  Remarks. 
98.  The  Code. 


§  97.   General  Remarlcs. 

The  right  to  waive  an  examination  and  give  bail  has 
been  claimed  on  a  number  of  occasions,  the  prisoner  con- 
tending that  the  examination  is  his  privilege,  which  he  can 
avail  himself  of  if  he  chooses,  and  that  the  same  is  entirely 
within  his  control. 

To  sustain  this  theory,  an  expression  in  a  case  decided 
in  the  highest  tribunal  in  this  State  *  is  relied  on,  wherein 
the  validity  of  a  bond  to  answer  was  questioned  because  it 
made  no  mention  of  an  examination  having  taken  place. 

The  learned  justice,  in  disposing  of  the  question  raised 
respecting  the  bond,  says  :  "  Although  an  offender  is  en- 
titled to  the  benefit  of  all  the  forms  and  provisions  con- 
tained in  the  statute,  in  relation  to  his  arrest,  examination, 
and  order  for  commitment,  before  he  can  be  compelled  to 
enter  into  recognizance  to  appear  and  answer,  yet  he  may 
waive  those  forms,  and  when  charged  with  an  offense  may 
prefer  to  give  bail  at  once,  without  waiting  for  an  arrest  or 
an  examination,  according  to  the  forms  prescribed  in  the 
statute." 

The  bond  was  sustained  on  the  further  ground,  that  the 
rule  as  to  a  bond  differs  from  that  applying  to  .  a  commit- 
ment, because  in  the  latter  case  the  assent  of  the  party 
could  not  be  presumed  or  supposed,  which  ground  alone 


*  Champlain  vs.  The  People,  2  X.  Y.,  p.  82. 


120 


would  have  been  a  complete  answer  to  the  objection  ad- 
vanced against  the  recognizance. 

To  uphold  the  claim  that  the  defendant  may  waive  the 
examination,  would  be  in  direct  conflict  with  the  history  of 
the  origin  and  growth  of  the  examination  after  arrest. 

Only  a  part  of  the  hearing  on  the  arrest  is  for  the  benefit 
of  the  accused  exclusively,  viz., — his  own  examination  and 
that  of  his  witnesses, — and  this  part  cannot  be  insisted  on. 
It  should  remain  his  privilege  to  dispense  with  it.  But  the 
examination  of  the  complainant  and  his  witnesses  is  of 
interest  as  well  to  the  j^iiblic. 

We  have  seen  that  the  purpose  in  introducing  examina- 
tions was  to  hold  justices  to  a  better  accountability  for  any 
abuse  of  the  bailing  power  (ante,  §  77j  ;  that  the  examin- 
ation of  the  witnesses  for  the  prosecution  could  in  certain 
contingencies  be  used  as  evidence  on  the  trial,  and  that  it 
might  otherwise  be  valuable  in  comparing  the  evidence  on 
the  preliminary  hearing  with  that  on  the  trial.  These  are 
matters  which  concern  the  people,  and  it  can  never  have 
been  contemplated  that  the  accused  should  be  enabled  to 
deprive  the  government  of  proper  safeguards  and  powers  not 
prejudical  to  the  rights  of  prisoners. 

In  the  case  referred  to,  these  public  considerations  Avere 
probably  lost  sight  of  when  the  court  remarked  that  the 
defendant  could  waive  the  whole  examination. 

Neither  is  it  suggested  by  what  means  the  magistrate  is 
to  be  relieved  of  the  duty  to  take  the  evidence  of  the  j^ros- 
ecution  imposed  upon  him,  it  seems,  in  all  cases  by  the 
common  law,  and  specifically  by  statute  when  the  arrest  is 
by  warrant. 

The  situation  in  other  words  may  be  taken  to  be  this  : 
that  the  accused  is  now  permitted  to  avail  himself  of  the 
opportunity  afforded  by  the  existence  of  the  examination  to 
demonstrate  his  innocence  without  being  obliged  to  await 
the  trial,  by  being  present  at  it  and  empowered  to  cross- 
examine  the  witnesses  called  against  him,  give  his  own  state- 
ment, and  call  witnesses  in  his  own  behalf.     These  privi- 


121 

eges  now  afforded  by  the  examination,  are  the  outcome   of 
hiter  times,  not  at  all  contemplated  in  its  inception. 

As  soon  as  the  bond  is  accepted  it  must  be  borne  in  mind 
all  proceedings  before  the  magistrate  are  terminated,  and  he 
loses  jurisdiction  of  the  case.  He  cannot  take  the  evidence 
of  the  prosecution  after  the  recognizance  is  accepted,  oth- 
erwise the  taking  of  the  bond  and  the  departure  of  the 
prisoner  from  the  court  would  not  prevent  the  discharge 
by  the  magistrate  of  the  duty  imposed  on  him,  and  the 
right  of  waiver  of  the  examination  might  not  conflict  Avitli 
the  directions  of  the  law  respecting  the  examination.  Were 
this  claim  of  the  right  of  waiver  allowed  what  would  be  the 
practical  result  considered  more  specifically  and  in 
detail. 

Take  the  case  of  a  prisoner  arrested  without  a  warrant, 
Avhen  there  is  no  written  complaint.  Could  he  not  abso- 
lutely keep  the  Court  in  the  dark  if  his  claim  to  give 
bail  at  once  after  arrest  is  well  founded.  Nothing  would 
be  in  order  in  that  event  but  the  taking  of  the  bond, 
and  thereupon  the  jurisdiction  of  the  magistrate  ends.  In 
taking  the  bond  difficulties  would  be  encountered  at  every 
step,  the  magistrate  would  be  in  no  position  to  designate 
the  oiifense  in  the  bond  nor  fix  the  amount  of  bail,  nor  be 
able  to  ascertain  the  names  of  witnesses  to  bind  over  under 
the  statute.  If  the  nature  of  the  crime  is  not  ascertained, 
the  justice  will  be  at  a  loss  to  insert  the  court  where  the 
bondsman  is  to  produce  his  principal.  It  will  appear  from 
the  foregoing  reflections,  that  the  prisoner  can  not  be 
bailed  as  contemplated  by  law,  without  the  magistrate  be- 
ing empowered  to  enter  into  an  examination,  as  the  data  to 
be  included  in  the  bond  would  not  be  forthcoming  unless 
obtained  from  the  prisoner,  who  would  usually  be  an  un- 
safe informant. 

If  the  prisoner  has  the  right  to  waive  an  examination 
when  he  offers  bail,  it  should  follow  he  has  the  same  right 
when  he  does  not  seek  to  be  bailed,  but  asks  to  be  com- 
mitted.     Similar  difficulties  will  be  encountered   in  that 


1-22 


contingency  in  preparing  the  commitment  and  bringing 
tlie  self-confessed  criminal  to  trial. 

Committing  magistrates  are  to  determine  whether  an 
accused  person  is  to  be  pnt  on  his  trial  or  not ;  that  is,  to 
sift  charges  and  dismiss  them,  or  prepare  the  proofs  for  the 
trial.  This  department  of  justice  has  an  important  duty 
to  perform ;  to  see  to  it  that  no  persons  are  sent  to  trial  with- 
out a  probability  of  their  being  convicted  on  the  proofs 
transmitted. 

Were  it  the  right  of  persons  to  waive  an  examination  and 
give  bail  at  once,  the  utility  of  this  important  arm  of  the 
law  in  the  respect  just  referred  to  would  be  impaired. 

Besides,  it  is  in  the  discretion  of  the  trial  court  whether 
to  accept  a  plea  of  guilty  or  not.  The  prosecution  can  decline 
to  receive  it  and' insist  on  j^resenting  its  proofs  in  order  that 
full  justice  may  be  done,  and  in  the  same  spirit  it  would 
seem  to  be  a  duty  on  the  part  of  committing  magistrates 
to  examine  accusations  to  ascertain  the  gravity  of  the 
charge  and  to  see  to  it  that  no  innocent  person  subject  him- 
self to  a  trial  through  a  mistaken  conception,  involving  the 
government  in  an  unwarranted  expense. 

A  few  years  ago  this  question  came  up  in  the  City  of 
New  York,  and  was  decided  by  the  magistrate  presiding," 
he  making  use  of  the  following  language  : 

"  It  is  apparent  that"  the  statute  t  "requires  the  magis- 
trate to  examine  the  complainant  and  the  witnesses  j)ro- 
duced  in  support  of  the  prosecution  on  oath.  Nothing  is 
said  about  using  the  affidavits  taken  before  the  warrant  of 
arrest  issued.  The  statute  contemplates  that  all  the  evi- 
dence requisite  to  establish  the  crime  against  the  offender 
shall,  upon  his  being  brought  before  the  magistrate,  be 
taken  in  his  presence.  The  defendant  has  no  power  by 
any  waiver  of  his  to  dispense  with  the  discharge  of  the 
duties  devolved  upon  the  magistrate  by  the  express  terms 
of  the   statute.     The   magistrate,    in   taking   testimony  in 

*  People  vs.  Thompson,  March  30,  1879,  5th  Dist.  Police  Ct.,  N.Y.  City, 
t  3  R.  S.,  Part  iv.,  ch.  ii.,  title  ii.,  §  13. 


1  28 


su])port  of  tlie  i)rosecutioii  where  the  prisoner  is  brought 
before  him,  is  not  limited  to  evidence  '  in  regard  to  the 
offense  charged,'  but  he  is  expressly  permitted  to  take 
testimony  '  in  regard  to  any  other  matters  connected  with 
such  charge  which  such  magistrate  may  deem  pertinent.' 
The  statute  is  mandatory  and  absolute — an  examining 
magistrate  is  bound  to  take  the  examination  of  the  com- 
plainant and  his  witnesses  until  it  is  clearly  manifest  that  no 
crime  has  been  committed.  That  a})pearing  to  the  satisfac- 
tion of  the  magistrate,  it  of  course  follows  that  the  object 
of  the  statute  is  fulfilled  and  his  jurisdiction  ended.  Sup- 
pose the  prisoner  be  not  the  real  offender,  or  that  he  has 
accomplices — can  he  escape  under  a  technicality,  or  shield 
his  aiders  or  abettors  by  waiving  an  examination.  The 
statute  clothes  the  magistrate  with  large  discretionary 
powers  in  regard  to  the  evidence  to  be  taken  on  such  a 
proceeding.  As  already  stated,  the  magistrate  is  not  con- 
fined to  evidence  proving  the  offense  itself,  but  may  take 
testimony  '  in  regard  to  any  other  matters  connected  with 
such  charge,'  in  order  to  show  that  other  parties  are  equally 
guilty  with  the  persons  arrested,  or  to  ascertain  the  grade 
of  the  offense,  and  to  fix  the  amount  of  bail.  A  j^erson 
might  be  arrested  for  a  misdemeanor,  and  upon  examina- 
tion it  might  turn  out  that  a  felony  has  been  committed.'"'' 
The  law  contemplates  that  the  magistrate  may  make  an 
examination  before  him  very  searching  and  thorough,  in 
the  interest  of  public  justice. 

"  New  and  essential  testimony  is  frequently  disclosed  in 
the  course  of  the  investigation,  and  it  is  only  through  the 
methods  of  this  statute  that  they  can  be  revealed  and 
secured. 

■)r  *  vr  -ff  -X-  *  *  *  •?:■  ir 

"  It  is  true,  in  this  city,  on  account  of  the  large  amount 
of  business  which  comes  before  criminal  magistrates,  a 
practice  has  grown  up  regarding  the  affidavits  taken  prior 
to  the  arrest,  as  a  substitute  for  the  examination  of  *  the 

*  Redmond  v.  State,  12  Kans.  172. 


124 

complainant  and  the  witnesses  produced  in  support  of  the 
prosecution.'  Whether  defendants  can  ask  to  have  that 
course  pursued,  and  the  complainant  or  the  prosecutor  can 
give  a  consent  which  will  justify  such  a  practice  on  the  part 
of  the  magistrate,  need  not  now  be  considered.  But  this 
court,  it  is  ventured  to  say,  has  never  decided  that  the  ac- 
cused can  demand  it  as  a  right,  when  the  magistrate  decides 
that  the  intelligent  discharge  of  his  duty  requires  him  to 
take  the  examination.  If  such  a  course  can  be  taken,  it 
can  only  be  on  the  consent  of  the  prosecution,  and  not 
upon  the  consent  of  the  defendant.  There  are  certain 
things  which  the  defendant  can  waive.  He  can  waive  his 
own  examination  and  that  of  the  witnesses  in  support  of  his 
defense.  When  his  examination  is  read  to  him  he  can 
waive  making  any  corrections  or  additions  thereto.  He 
can  go  into  a  full  defense  or  lie  can  go  into  no  defense  at 
all  before  the  magistrate." 

{<  98.    The  Code. 

There  are  two  sections  of  the  Code  relating  to  the  waiv- 
ing of  the  examination,  the  one*  is  to  the  effect  that  when 
the  defendant  waives  examination  and  elects  to  give  bail, 
the  magistrate  must  admit  the  defendant  to  bail  if  the  crime 
is  bailable  ;  by  the  other,!  when  the  arrest  has  been  by 
warrant,  unless  the  defendant  requests  it,  or  elects  to  have 
the  examination,  the  dei^ositions  of  the  witnesses  examined 
on  the  taking  of  the  information  are  to  stand  in  lieu  of  their 
re-examination  in  the  presence  of  the  defendant. 

The  first  is  exposed  to  the  criticisms  advanced  in  the  last 
section,  the  other  would  be  to  the  objection  that  the 
depositions  could  not  be  used  as  evidence  on  the  trial 
were  it  not  for  a  saving  clause  contained  elsewhere  in  the 
Code  designed  to  preserve  their  admissibility.  % 

*  %  190.  t  §  194.  t  i  8,  Bubd.  3. 


125 


HOLDING  TO  ANSWER,  (Probable  Cause). 


CHAPTEK  I. 

Section  99.  The  Term,  Probable  Cause. 

100.  Roman  Law. 

101.  German  Coneei^tions  and   Subsequent  Prog- 

ress. 

102.  Present  Views. 

103.  General  Remarks. 
104  The  Code. 


§  99.   The  Term,  Probable  Cause. 

The  term  "  probable  cause  "  has  been  used  in  the  head- 
ing of  this  section,  because  it  is  one  that  will  be  generally 
recognized  and  perhaps  best  understood  as  indicating  the 
matter  that  will  here  be  considered  ;  that  is,  the  question  of 
the  sufficiency  of  the  evidence  to  warrant  the  holding  of  the 
accused  to  answer. 

This  designation  is  selected  not  without  some  misgiving, 
since  it  may  tend  to  mislead  as  to  the  character  of  the  test 
that  is  to  guide  the  magistrate  in  arriving  at  a  decision  after 
the  examination  is  concluded.  From  what  follows  it  will 
be  learned  that  the  words  "  probable  cause  "  are  insuffi- 
cient, without  explanation,  to  lead  to  an  accurate  under- 
standing of  the  duty  resting  on  the  committing  officer. 

The  practices  followed  heretofore  will  first  be  briefly 
presented  and  traced  to  the  present  theory. 


li?6 


§  100.  Roman  Law. 

By  the  Eomaii  law  we  have  seen  the  accused  was  not 
arrested  till  after  his  trial  aand  conviction,  a  consideration 
shown  him  which  we  in  our  day,  enlightened  as  is  our  juris- 
prudence, Avould  not  think  of  extending,  and  there  is  not  at 
present  any  disposition  manifesting  so  high  a  regard  for 
the  liberty  of  the  accused. 

Had  a  proceeding  similar  to  our  examination  been  known 
to  the  Eomans,  in  all  probability  some  steps  would  have 
been  provided,  after  the  close  of  the  same,  to  secure  the  sus- 
pected person  to  answer  for  the  result  of  the  trial.  But, 
the  trial  being  the  only  hearing,  the  presumption  of  in- 
nocence was  in  no  way  disturbed  by  any  preliminary 
judicial  investigation. 

§  101.   German.  Conceptions  and  Subsequent  Progresft. 

We  are  shocked  in  passing  to  the  ancient  German  theory 
of  trials,  wherein  the  judgment  before  the  hearing  of  proof 
condemned  the  accused  who  denies,  to  furnish  proof  of  his 
innocence.  The  accused  was  presumed  to  be  guilty  ;  and 
hence  that  presumption  took  the  place  of  an  examination 
resulting  unfavorably  to  the  defendant.  It  will  be  seen 
that  this  presumption  thereafter  continued  even  after  the 
introduction  of  the  examination,  which  was  only  for  the 
benefit  of  the  prosecution. 

Thus  it  was  said  less  than  a  century  ago  that  "  if  a  felony 
was  committed  and  it  was  found  upon  examination  that  the 
prisoner  was  not  guilty,  yet  the  justice  shall  not  discharge 
him,  but  he  must  either  be  bailed  or  committed  ;  for  it  is 
not  fit  that  a  man  once  arrested  and  charged  with  felony  or 
suspicion  thereof,  should  be  delivered  upon  any  man's 
discretion  without  further  trial."  * 

If,  hoAvever,  said  Lord  Hale,  "  there  be  no  cause  to  com- 
mit him  found  by  the  justice  upon  examination  of  the  fact, 

*  1  Burns,  Justice  [1785],  Dalt.,  c.  164  ;  2  Hale's  PI.  Cr.,  130. 


127 

lie  may  discharge  him."  -  By  this  is  meant,  no  ground  for 
susjjicion,  and  Blackstone  takes  the  same  position  in  the 
following  passage  : 

"  If  upon  the  inquiry  into  the  circumstances  of  the  crime 
it  manifestly  appears  either  that  no  such  crime  was  com- 
mitted or  that  the  suspicion  entertained  was  wholly  ground- 
less, in  such  case  only  it  is  lawful  totally  to  discharge  him, 
otherwise  he  must  be  either  committed  to  prison  or  give 
bail.t 

Hawkins  explains  in  the  same  tenor  : 

"  A  person  legally  committed  for  a  crime,  certainly  ap- 
pearing to  have  been  done  b}-  some  one  or  other,  can  be 
dischargad  by  none  but  the  king,  till  he  be  acquitted  or 
have  an  '  Ignoramus '  found,  or  none  to  prosecute  him  on  a 
proclamation  made. 

"  But  it  is  said  that  a  person  committed  on  a  bare  sus- 
picion, without  any  appeal  or  indictment,  for  a  supposed 
crime,  where  afterwards  it  manifestly  appears  that  no  such 
crime  was  committed,  may  safely  be  dismissed  without 
any  further  proceeding."  | 

As  further  indicative  of  the  course  pursued  then,  we  have 
another  account  of  the  duty  of  the  magistrate  : 

"  If  one  be  brought  before  a  justice  of  the  peace  upon 
suspicion  of  felony,  although  the  information  against  the 
prisoner  shall  be  by  witnesses  who  are  enumerated  as  not 
credible,  yet  it  seemeth  safest  for  the  justice  of  the  peace  to 
take  their  information  for  the  king,  and  to  bind  them  over 
to  give  evidence,  etc.,  and  to  commit  the  party  suspected, 
and  upon  the  trial  to  inform  the  justice  of  gaol  delivery 
concerning  their  credit."  § 

Bay  ley,  J.,  referring  to  the  foregoing,  says,  "  I  am  by  no 
means  satisfied  with  their  authority,  for  I  think  that  a 
magistrate  is  clearly  bound,  in  the  exercise  of  a  sound  dis- 
cretion, not  to  commit  any  one,  unless  a  j^rma  facie  case 

*  2  Hale's  PL  C,  vol.  1,  p.  583. 
t  4  Black.,  p.  296  (Sharswood). 
X  Hawkins'  PI.  Cr.,  vol.  iii.,  p.  239. 
§  Dalton's  Justice,  408. 


128 

is  made  out  against  liim  by  witnesses  entitled  to  a  reason- 
able degree  of  credit.* 

Here  a  definite  requirement  is  laid  down,  a  prima  facie 
case  at  least  is  prescribed,  and  that  degree  of  proof  appears 
to  have  been  exacted,  according  to  Lord  Campbell,  by  Lord 
Chief  Justice  Holt,  who  acted  as  a  police  magistrate  in  the 
beo-inning  of  the  eighteenth  century,  taking  depositions 
ac^ainst  parties  accused,  and  where  a  prima  facie  case  was 
made  out  against  them  committed  them  for  trial.t 

Eeviewing  the  progress  made  in  the  theories  concerning 
the  circumstances  determining  whether  the  accused  shall 
be  put  to  his  trial,  we  gather  that  originally  the  burden  of 
demonstrating  innocence  rested  Avith  the  accused  and  not 
the  proof  of  guilt  with  the  people  ;  hence  no  preliminary 
hearing  was  had,  a  charge  being  all  that  was  requisite, 
and  the  trial  followed,  which  Avas  extended  as  a  privilege 
and  a  concession  to  the  accused ;  after  that  a  suspicion 
sufficed  for  committing  and  then  the  condition  that  a  ijrima 
facie  case  must  exist.  The  prevailing  fear  to  intrust  ma- 
gistrates with  full  discretion  to  discharge  offenders  is 
everywhere  visible.  In  this  State,  as  will  be  hereafter 
seen,  that  fear  is  no  longer  reflected  in  its  laws. 

The  requirement  for  several  centuries  prior  to  this  of  a 
prima  facie  case  only,  as  a  condition  precedent  to  convic- 
tion, we  find,  was  superseded  by  legislation,:}:  which  pro- 
vided that  a  strong  presumption  of  guilt  must  exist  before 
a  committal  for  trial ;  but  when  only  one  justice  was  pres- 
ent at  the  hearing  if  there  was  neither  a  strong  presump- 
tion of  guilt  raised  nor  a  dismissal  of  the  charge  warranted, 
the  person  charged  was  detained  until  taken  before  two 
justices  at  the  least,  who  in  their  discretion  might  hear 
evidence  on  behalf  of  the  prisoner  and  let  to  bail  should 
the  presumption  of  guilt  be  weakened  and  there  still 
remain  ground  for  further  judicial  inquiry. 

"1  B.  andC,  50  and  51. 

f  Shakesi^eare's  Legal  Acquirements,  83. 

X  7  Geo.  IV.,  cap.  64,  May  26,  1826. 


129 


§  102.  Present  Vieivs. 

From  "  strong  presumption  of  guilt "  we  pass  to  the 
expression,  by  a  prominent  authority,*  that  "  probable 
cause  "  should  exist.     His  views  are  thus  stated  : 

"  To  authorize  a  commitment,  the  same  proof  is  not  re- 
quired which  would  be  necessary  to  convict  a  person  on  the 
trial  in  chief ;  but  the  committing  magistrate  will  require 
that  probable  cause  be  shown.  Probable  cause  is  a  case 
made  out  by  proof,  furnishing  good  reason  to  believe  that 
the  crime  alleged  has  been  committed  by  the  person  charged. 
When  such  cause  is  shown,  it  can  be  done  away  only  by  its 
appearing  that  no  such  crime  has  been  committed,  or  that  the 
suspicion  entertained  of  the  prisoner  is  wholly  groundless." 

The  time  has  now  been  reached  when  it  is  thought  not 
imprudent  to  intrust  full  authority  to  discharge  to  one 
who  has  the  power  to  commit,  the  Revised  Statutes  being 
in  these  words  :  "  If  upon  the  examination  of  the  whole 
matter  it  shall  appear  to  the  magistrate,  either  that  no 
offense  has  been  committed,  or  that  there  is  no  probable 
cause  for  charging  the  prisoner  therewith,  he  shall  dis- 
charge such  prisoner,  "t 

The  converse  of  the  conditions  under  either  of  which  the 
prisoner  shall  be  discharged  is  to  be  found  in  the  section 
next  following  the  above,  and  is  in  these  words  : 

"  If  it  shall  appear  that  an  offense  has  been  committed, 
and  that  there  is  probable  cause  to  believe  the  prisoner 
to  be  guilty  thereof,  the  magistrate  shall  bind  by  recogni- 
zance, etc." 

From  the  foregoing  it  will  be  seen  that  the  probable 
cause  referred  to  does  not  relate  to  the  offense  as  commonly 
understood,  but  to  the  prisoner.  In  other  words,  the  magis- 
trate is  not  simply  to  come  to  the  conclusion  that  there  is 
probable  cause  for  believing  that  an  offense  has  been  com- 
mitted in  order  to  hold  an  accused  person,  but,  in  order  to 

*  U.  S.  vs.  Burr,  Sergeant's  Const.  Law,  254. 
f  R.  S.,  Part  iv.,  chap,  ii.,  title  ii.,  §  20. 


130 

be  authorized  to  do  so,  it  must  appear  to  the  magistrate 
that  an  oflfense  has  in  fact,  not  probably,  been  committed, 
and  then  that  settled  in  the  mind  of  the  magistrate,  such 
examination  must  point  to  the  accused  as  the  probable 
offender. 

It  has  been  held  that  clear  and  indubitable  proof  of  guilt 
is  not  required  in  order  that  the  accused  may  be  held  ;  but 
if  the  magistrate,  after  a  full  examination  of  the  facts,  is 
satisfied  that  no  crime  has  been  committed,  the  accused 
should  be  at  once  discharged.* 


§  103.   General  Remarks. 

To  determine  on  what  evidence  a  prisoner  should  be 
committed  for  trial,  or  on  what  testimony  he  ought  to  be 
discharged,  are  questions  of  great  difficulty  and  importance, 
for  the  magistrate  in  discharging  an  accused  person,  in 
most  cases,  terminates  all  criminal  proceedings  against 
him. 

It  is  true  that  an  indictment  will  not  be  quashed  on  the 
ground  that  it  was  found  and  presented  by  the  grand  jury 
subsequent  to  the  dismissal  of  the  same  charge  on  exam- 
ination before  a  magistrate  or  pending  the  same,t  but 
grand  juries  will  ordinarily  assume  that  the  matter  was 
properly  disposed  of  by  the  committing  magistrate.  Com- 
plainants failing  in  one  quarter  are  likely  to  feel  dis- 
couraged and  indisposed  to  renew  their  prosecution  else- 
where, and  the  same  and  other  magistrates  will  reluctantly 
rehear  the  complaint,  though  the  power  to  do  so  un- 
doubtedly exists  in  proper  cases. :{:  On  the  other  hand, 
if  the  magistrate  commit  the  accused  on  insufficient  evi- 
dence he  subjects  the  prisoner  to  great  suffering  and  the 
people  to  useless  exjDense  in  a  futile  attempt  to  convict. 

*  U.  S.  vs.  Lumsden,  1  Bond,  5. 

f  People  vs.  Heffeman,  5  Park  Cr.  R. ,  393. 

X  3  Kent's  Com.,  p.  12,  note  b;  Wright's  Rep.,  450;  1  Bond,  5. 


131 

The  following  exposition  of  the  duty  of  the  magistrate 
needs  biit  few  modifications  or  additions  : 

"It  is  to  be  recollected,  however,  that  this  examination  is 
not  a  judicial  inquiry,  in  which  tlie  guilt  or  innocence  of 
the  party  accused  is  to  be  finally  decided  upon.  It  is  the 
duty  of  the  magistrate,  in  this  stage  of  proceedings,  to 
ascertain,  first,  whether  the  crime  alleged  has  been  com- 
mitted, and  whether  committed  in  the  manner  and  with  the 
circumstances  alleged ;  and  secondly,  if  the  crime  has  been 
so  committed,  whether  there  is  reasonable  ground  to  believe 
that  the  party  accused  may  have  committed  it,  so  as  to  de- 
mand a  further  inquiry,  and  for  which  the  party  should  be 
sent  to  stand  his  trial  upon  the  charge  preferred.  And  as, 
on  the  one  hand,  the  magistrate  would  act  contrary  to  the 
principles  of  reason  and  justice,  and  in  violation  of  his 
duty,  if  he  were  to  commit  the  party  to  prison  against  the 
clear  conviction  of  his  own  understanding  and  the  obvious 
and  inevitable  conclusion  of  common  sense  ;  yet,  on  the 
other  hand,  he  is  bound  not  to  discharge  the  prisoner 
unless  he  is  perfectly  satisfied  that  there  is  not  sufficient 
ground  for  judicial  inquiry.  In  the  discharge  of  this  part 
of  his  duty,  the  magistrate  may  encounter  cases  of  consid- 
erable nicety  and  difficulty,  as  where  there  is  conflicting  or 
suspicious  testimony,  or  where  the  complainant  appears 
pertinaciously  to  persevere  in  his  accusation  from  an  obsti- 
nate adherence  to  a  charge  once  made ;  and  it  seems  im- 
possible to  lay  down  precise  and  invariable  rules  for  his 
guidance  under  such  circumstances.  He  must  act  on  his 
own  responsibility ;  but  if  he  acts  with  purity  of  intention 
and  according  to  the  best  of  his  judgment  in  the  important 
trust  thus  imposed  on  him,  keeping  in  view  that  this  inquiry 
is  only  preliminary  and  with  the  object  above  stated,  he 
can  have  nothing  to  apprehend."  * 

The  power  lodged  in  the  hands  of  a  magistrate  to  dis- 
charge a  prisoner  accused  of  having  committed  an  ofiense 
against  the  law,  is  now  complete ;  he  must,  it  will  be  re- 

*  Barb.  Cr.  Treatise,  565. 


132 

peated,  before  lie  can  commit,  be  satisfied  tliat  an  offense  lias 
been  in  fact  committed,  not  tliat  there  is  merely  a  prima 
facie  case,  or  presumption  of  guilt,  or  any  other  degree  of 
proof  less  than  an  approach  to  a  conviction  in  the  mind  of 
the  justice.  And  why  should  this  not  be  so,  why  should  it  be 
in  the  power  of  any  person  to  confine  in  custody  another  as 
to  whose  guilt  there  should  be  a  reasonable  doubt  ?  The 
answer  has  been,  that  the  guilty  might  not  escape.  That, 
it  seems,  has  been  the  great  apprehension,  an  abiding  fear 
lest  the  guilty  might  escape.  And  this  fear  has  controlled 
all  criminal  legislation  until  the  provisions  of  the  Revised 
Statutes,  which  were  framed  in  a  spirit  far  in  advance  of 
prior  enactments  and  in  accord  with  the  enlightened  con- 
ceptions of  the  present  day. 

The  magistrate  will,  in  most  cases,  find  little  difficulty  in 
determining  whether  or  not  to  hold  the  accused  for  trial, 
if  he  make  the  examination  sufficiently  exhaustive.  If  he 
be  permitted  to  commit  on  weak  proof,  indifference  or  in- 
dolence will  mark  his  investigation,  which  would  be  absent 
from  a  higher  responsibility.  After  the  inquiry  has  been 
pushed  as  far  as  the  evidence  attainable  will  permit,  and 
there  still  present  themselves,  as  against  those  held  by 
the  magistrate,  reasonable  theories  on  which  the  accused 
might  be  deemed  to  be  guilty,  it  will  be  better  and  safer  to 
commit."' 

§  104.   The  Code. 

The  following  sections  of  the  Code  point  out  M^hen  the 
prisoner  is  to  be  discharged  and  when  held  : 

"  After  hearing  the  proofs  and  the  statement  of  the  defen- 
dant, if  he  have  made  one,  if  it  appear  either  that  a  crime 
has  not  been  committed,  or  that  there  is  no  suflicient  cause 
to  believe  the  defendant  guilty  thereof,  the  magistrate  must 
order  the  defendant  to  be  discharged,  by  an  indorsement  on 
the  depositions  and  statement,  signed  by  him,  to  the  follow- 

*  See  1  Colby's  Crim.  L.,  pp.  194,  195. 


133 

ing  effect :  '  There  being  no  sufficient  cause  to  believe  the 
within  named  A.  B.  guilty  of  the  offense  within  mentioned, 
I  order  him  to  be  discharged.'  "  " 

"  If,  however,  it  appear  from  the  examination  that  a 
crime  has  been  committed  and  that  there  is  sufficient  cause 
to  believe  the  defendant  guilty  thereof,  the  magistrate  must, 
in  like  manner,  indorse  on  the  depositions  and  statement 
an  order,  signed  by  him,  to  the  following  effect :  'It  appear- 
ing to  me  by  the  within  depositions  (and  statement,  if  any) 
that  the  crime  therein  mentioned  [or  any  other  crime 
according  to  the  fact,  stating  generally  the  nature  thereof] 
has  been  committed,  and  that  there  is  sufficient  cause  to 
believe  the  within  named  A.  B.  guilty  thereof,  I  order  that 
he  be  held  to  answer  the  same.'  "  t 

Order  for  Commitment. 

"  If  the  crime  be  not  bailable,  the  following  words,  or 
words  to  the  same  effect,  must  be  added  to  the  indorse- 
ment :  '  and  that  he  be  committed  to  the  Sheriff  of  the 
County  of  '  [or  in  the  City  and  County  of  New 

York,  '  to  the  keeper  of  the  City  Prison  of  the  City  of  New 
York']."t 

Transmission   of  Papers. 

"  When  a  magistrate  has  discharged  a  defendant,  or  has 
held  him  to  answer,  as  provided  in  sections  207  and  208  " 
of  the  Code  (ante,  this  section),  "  he  must  return  to  the 
next  Court  of  Oyer  and  Terminer,  or  Court  of  Sessions  of 
the  county,  or  city  court  having  power  to  inquire  into  the 
offense  by  the  intervention  of  a  grand  jury,  at  or  before  its 
opening  on  the  first  day,  the  warrant,  if  any,  the  deposi- 
tions, the  statement  of  the  defendant,  if  he  have  made  one, 
and  all  undertakings  of  bail,  or  for  the  appearance  of 
witnesses,  taken  by  him."  II 

*  §  207.  t  §  208.  X  §  209. 

§  321  ;  see  R.  S.,  Parb  iv.,  ch.  ii.,  title  ii.,  §§  26,  37,  33,  33. 


.       134 

Generally,  the  papers  of  the  examination  are  to  be  sent 
to  the  court  where  the  trial  is  to  be  had. 

Defendant  to  Choose  lioiu  he  shall  he  Tried. 

"  If  the  crime  with  which  the  defendant  is  charged  be 
one  triable,  as  hereinbefore  provided,  by  a  Court  of  Special 
Sessions  of  the  county  in  which  the  same  was  committed, 
the  magistrate,  before  holding  the  defendant  to  answer, 
must  inform  him  of  his  right  to  be  tried  by  a  jury  after 
indictment,  and  must  ask  him  how  he  will  be  tried.  If 
the  defendant  shall  require  to  be  tried  by  a  jury  after 
indictment,  he  can  only  be  held  to  answer  to  a  court 
having  authority  to  inquire  by  the  intervention  of  a  grand 
jury  into  offenses  triable  in  the  county.  If  he  shall  not  so 
require,  he  may  be  held  to  answer  at  the  Court  of  Special 
Sessions."  * 

No  Preliminary  Examination,  if,  in  Counties  other  than  New 
York,  the  Defendant  selects  a  Court  of  Special  Sessions. 

""When  the  defendant,  upon  being  brought  before  the 
magistrate,  requests  a  trial  by  a  Court  of  Special  Sessions, 
the  preliminary  examination  of  the  case  is  dispensed 
with."  t 

*  Code,  §  211.  t  Code,  §  732. 


BAIL. 


Chapter  I.— What  is  Bail  ? 
II. — Purpose  of. 
III. — In  what  Cases. 
IV. — Amount  of  Bail. 
V. — Power  to  Take  Bail ;  Apj^lication,  etc. 
VI.— The  Sureties. 
VII.— What  Bond  Should  Contain. 
VIII. — Form  of  Discharge  on  Taking  Bail. 
IX. — Certificate  of  Bail  being  Taken. 

X. — Liability  of  Bail. 
XL — Duties  and  Liabilities  of  the  Bailing  Power. 
XII. — New  Sureties. 
XIII. — Acts  Ministerial  or  Judicial. 
XIV. — Deposit  in  Lieu  of  Bail. 
XV. — Surrender. 


CHAPTEK  I. 

§  105.    What  is  Bail. 

The  magistrate  having  heard  the  examination  and  con- 
cluding not  to  discharge  the  accused,  may  be  called  on  to 
accept  bail  in  lieu  of  making  out  a  commitment.  Bail  is  a 
delivery  of  a  person  to  his  sureties  for  his  appearance  at 
court  to  answer  the  charge  against  him,  he  being  supposed 


136 


to  continue  in  their  friendly  custody,  instead  of  going  to 
prison.* 

A  man's  bail  are  not  barely  his  sureties  as  are  mainper- 
nors,! but  are  looked  upon  as  his  jailers  of  his  own  choos- 
ing, who,  if  they  suspect  him,  may  detain  him  themselves, 
and  compel  him  to  appear  according  to  the  condition  of  the 
recognizance4 

*  4  Black  Com.,  c.  22. 

f  Mainpernors  are  merely  sureties  for  the  appearance  of  the  person 
liberated,  and  are  bound  to  produce  him  to  answer  all  charges  whatsoever. 
They  cannot  surrender  or  imprison  their  party.  (Bouviers'  Law  Diet.,  vol.  2, 
p.  89.) 

X  Hawkins'  Summary,  Book  2,  88. 


137 


CHAPTEE  II. 

§  106.  Purpofie  of. 

It  being  now  a  recognized  principle  of  the  criminal  law 
that  all  are  presumed  innocent  until  proven  to  be  guilty,  it 
follows  that  no  punishment  should  be  inflicted  prior  to 
conviction ;  but  since  arrests  are  always  made  at  the  outset 
of  criminal  proceedings,  in  so  far  as  the  deprivation  of 
liberty  thereby  ensues,  the  above  principle  is  violated,  and 
is  justified  because  of  the  danger  of  the  non-attendance  of 
the  accused  at  the  trial,  and  with  a  view  to  make  the  pen- 
alty operative  and  not  at  all  designed  as  punishment.* 
To  ameliorate  the  harshness  of  the  arrest  before  convic- 
tion, free  nations  everywhere  guarantee  the  principle  of 
bailing,  t 

A  recognizance  of  bail  is  not,  in  a  criminal  case,  designed 
as  a  satisfaction  of  the  offense,  when  it  is  forfeited  and  paid, 
but  as  a  means  of  compelling  the  party  to  submit  to  the 
trial  and  punishment  which  the  law  ordains  for  his  offense  ;| 
hence  the  forfeiture  of  the  bail  bond  is  usually  accom- 
panied with  the  issuance  of  a  bench  warrant  for  the  rearrest 
of  the  person  bailed  and  not  appearing  pursuant  to  the 
condition  of  the  bond. 


*  People  vs.  Cole,  6  Par.  Cr.  R.,  695. 

f  Lieber's  Civil  Liberty  and  Self-government,  ed.  1874,  p.  67. 

X  Ex  parte  Milbiim,  9  Peters,  710. 


138 


CHAPTEE    III. 

IN   WHAT   CASES. 

Section  107.  Enlargement  of  the  Bailing  Power. 
108.  The  Code. 


§  107.    Enlargement  of  the  Bailing  Poioer. 

Up  to  the  latter  end  of  the  fifteenth  century,  it  was 
not  determined  in  England  what  persons  were  replevisable 
(bailable)  and  what  not ;  but  only  those  taken  for  death  or 
by  command  of  the  king  or  of  the  justices  or  for  the  Forest, 
when  by  Westminster  1,  c.  15,  those  offenses  which  are  bail- 
able, and  those  not  were  designated,*  and  thereafter  only 
a  limited  class  of  persons  wei"e,  it  appears  from  the  follow- 
ing enactment,  entitled  to  bail,  which  privilege  was  extended 
thereby  to  certain  prisoners  not  indicted. 

The  provision  is  in  these  words  :  "  For  as  much  as  divers 
persons  have  been  daily  arrested  and  imprisoned  for  sus- 
pection  of  felony,  sometimes  of  malice  and  sometimes  of 
slight  suspection,  and  so  kept  in  prison  without  bail  or 
mainprise  to  their  great  vexation  and  trouble,  Be  it 
ordained  and  established,  etc.,  that  every  justice  of  every 
shire,  city  or  town,  shall  have  authority  and  power  by  his 
or  their  discretion  to  let  such  prisoners  and  persons  so 
arrested  to  bail  or  mainprise,  in  like  form  as  though  the 
same  prisoners  or  persons  were  indicted  thereof  of  record 
before  the  same  justices  in  their  sessions."  t 

As  the  rights  of  prisoners  were  from  time  to  time 
enlarged  in  other  respects,  the  principle  of  bailing  was 
extended  until  it  rests  on  this  enlightened  principle — if  the 
attendance  of  the  accused  can  be  effected  as  certainly  by  bail 
as  by   imprisonment,   he    should   in   almost   any  case   be 

*  Hawks.  PI.  Cr.,  Book  2,  196  ;  Hawkins'  Summary,  title  BaU,  Book  2,  95. 
fl  Richard  III.,  cap.  iii.  (1488). 


139 

bailed  ;  *  or,  when,  it  is  said,  the  loss  of  the  bailed  sum  may 
be  considered  as  a  more  serious  evil  than  the  possible 
punishment,  t 

"  In  most  of  the  inferior  offenses,"  says  Blackstone,  "  bail 
will  answer  the  same  intention  as  commitment,  and,  there- 
fore, it  ought  to  be  taken,"  :j;  but  if  the  guilt  of  the  prisoner 
is  beyond  dispute,  bail  ought  not  to  be  taken.  In  criminal 
cases  bail  is  founded  on  the  doubt  which  may  exist  as  to 
the  prisoner's  guilt  and  not  on  the  grace  or  favor  of  the 
court.  At  each  stage  of  the  proceeding,  the  grounds  upon 
which  the  accused  can  be  let  to  bail  diminish  in  proportion 
as  the  evidences  of  his  guilt  increase.  § 

Even  in  cases  of  the  highest  crimes,  unless  the  proof  of 
guilt  is  evident  or  the  presumption  great,  the  accused  is 
allowed  to  give  bail,  and  this  concession  is  guaranteed  by 
the  constitution  or  statutes  of  most  of  the  States.  II 

"  But  in  offenses  of  a  capital  nature,  no  bail,''  it  is  said, 
"  can  be  security  equivalent  to  the  actual  custody  of  the 
person.  There  is  nothing  that  a  man  may  not  be  induced 
to  forfeit  to  save  his  life,  and  it  is  no  satisfaction  or  indem- 
nity to  the  public  to  seize  the  effects  of  those  who  have 
bailed  a  murderer,  if  the  murderer  himself  be  suffered  to 
escape  with  impunity."  %  Under  special  circumstances, 
however,  the  power  to  bail  exists  even  in  capital  cases.** 

§  108.   T/ie  Code. 

The  Code  tt  is  particularly  explicit  on  this  question  : 
"  The  defendant  cannot  be  admitted  to  bail,  where  he  is 
charged, 


*  People  vs.  Cole,  6  Par.  Cr.  R.,  695. 

f  Lieber's  Civil  Liberty  and  Self-government,  p.  67,  ed.  1874. 
t  4  Blackstone  Com. ,  c.  23. 
§  People  m.  Lohman,  2  Barb.,  450. 

II  Arch.  Crim.  Practice  and  Pleadings,  vol.   1,  165  and  166. 
T[  4  Blackstone  Com.,  c,  22. 
**Arch.  Cr.  Pr.  and  PI.,  vol.  1,  1G7,   109. 

ff  The  Notes  to  Revisers'  Report  of  N.  Y.  Code  of  Cr.  Proc. ,  pp.  284  to 
291,  1850,  will  be  read  with  profit. 


140 

1.  With  a  crime  pimishable  witli  death  ;  or, 

2.  With  the  infliction  of  a  probably  fatal  injury  upon 
another,  and  under  such  circumstances  as  that,  if  death 
ensue,  the  crime  would  be  murder."  * 

"  If  the  charge  be  for  any  other  crime,  he  may  be  admitted 
to  bail,  before  conviction,  as  follows  : 
■  1.  As  a  matter  of  right,  in  cases  of  misdemeanor  ; 

2.  As  a  matter  of  discretion,  in  all  other  cases."  t 

*  8  553.  t  §  553. 


141 


CHAPTER  IV. 

AMOUNT    OF    BAIL. 

Section  109.  Elements  to  be  Considered. 
110.  Not  to  be  Excessive. 


§  109.  Elements  to  he  Considered. 

In  determining  the  amount  of  bail,  its  sufficiency  to 
secure  the  appearance  of  the  prisoner  at  the  trial  is  to  be 
the  only  consideration ;  therefore  it  must  depend  on  the 
seriousness  of  the  offense,  the  ability  and  quality  of  the 
prisoner,*  and,  it  may  be  added,  the  extent  and  character  of 
the  proofs. 

§  110.   Not  to  he  Excessive. 

As  far  back  as  the  year  1689,  it  was  enacted  that  "  no 
excessive  bail"  shall  be  required.f 

The  Constitution  of  the  United  States  provides  that 
excessive  bail  shall  not  be  required.  | 

Substantially  the  same  provision  forms  a  part  of  the 
Constitution  of  this  State, §  and  of  the  States  generally. 

But  what  is  excessive  bail  must  be  left  to  the  judgment 
of  the  officer  or  court  empowered  to  decide  upon  it,  depend- 
ing, of  course,  on  the  circumstances  of  the  case  ;  for  what 
might  be  a  low  bail  in  one  case  might  be  excessive  in 
another,  and  vice  versa.  || 

*  Hawkins'  Summary,  Book  2,  p.  89  ;  Ex  parte  Banks,  28  Ala.  Rep.,  89  ; 
Swan's  Justice,  p.  483;  Lieber's  Civil  Liberty  and  Self-government,  ed. 
1874,  p.  67. 

f  1  William  and  Mary,  Sess.  ii.,  c.  2. 

X  U.  S.  Const.,  art.  viii. ,  Amendments. 

§  N.  Y.  Const.,  art.  i.,  §  5  ;   see  also,  1  Rev.  Stat.,  Part  i.,  chap,  iv.,  §  17. 

i  Davis,  J.,  83. 


142 


CHAPTEE  V. 

POWER  TO   TAKE   BAIL  ;    APPLICATION,    ETC. 

Section  111.  General  Principles. 

112.  Ancient  Justices  of  the  Peace. 

113.  Offenses  Against  tlie  United  States. 

114.  The  Several  States. 

115.  The  Code — General  Powers  Conferred. 

116.  By   Whom,    when    Committing  Magistrate 

has  no  Power. 

117.  How  Long  Committing  Magistrate  Retains 

Power. 

118.  Notice  of  Application  for  Bail  to  the  District 

Attorney,  in  Cities. 
111).  Notice    may   be    Eequired    Elsewhere   by 
Court  or  Magistrate. 

120.  Order  or  Certificate  Granting  or  Denying 

Bail. 

121.  New  Application  for  Bail  on  Denial  of. 

122.  Penalties  for  Illegal  Applications. 

123.  Certain  Powers  not  Limited. 

124.  Whose  Decision  Final. 


§  111.   General  Principles. 

The  power  to  take  bail  is  incident  to  every  common  law 
court  of  record,*  and  is  incident  to  the  power  to  hear  and 
determine.'!' 

Bail  may  be  taken  by  an  officer  who  has  general  jurisdic- 
tion to  take  bail,  although  not  the  officer  before  whom  the 
application  to  take  bail  is  pending.  | 

*  Young  vs.  Shaw,  1  Chipman,  224. 
t  People  vs.  Van  Home,  8  Barb.,  158. 
\  People  vs.  Legget,  5  Barb.,  360. 


143 


§  112.  Ancient  Justices  of  the  Peace. 

From  the  time  tlie  right  to  bail  was  recognized,  the 
ancient  officer  of  "Justice  of  the  Peace"  had  jurisdiction 
to  take  the  recognizance. 

This  power  was  at  first  lodged  with  one  justice,  and 
becoming  the  subject  of  abuse,  it  was  deemed  wise  "  to  take 
the  power  from  a  single  justice"  and  confer  it  on  "  all  of 
the  justices  of  the  peace,"  or  two  at  the  least,  whereof  one 
to  be  of  the  quorum,  to  let  "  such  prisoners  or  persons 
mainpernable  by  the  law,  that  have  been  imprisoned  within 
their  several  counties,  city  or  town,  to  bail  or  mainprise, 
until  their  next  general  sessions,  or  unto  the  next  gaol  de- 
livery of  the  same  gaols  in  every  shire,  city  or  town,  as 
well  within  franchises  or  without  where  any  gaols  have  been 
or  hereafter  shall  be,  and  to  certify  the  same  at  such  next 
general  sessions  or  gaol  delivery."* 

§  113.   Offenses  against  the  United  States. 

Authority  is  given  by  acts  of  Congress  to  take  bail  for 
any  crime  except  where  the  punishment  is  death,  to  any 
judge  of  the  United  States,  and  to  any  chancellor,  judge  of 
the  Supreme  or  Superior  Courts,  or  first  judge  of  any  Court 
of  Common  Pleas,  mayor  of  a  city,  in  any  State,  and  any 
justice  of  the  peace  or  other  magistrate  of  any  State  where 
the  offender  may  be  found  ;  the  recognizance  taken  by  any 
of  the  jDersons  authorized  to  be  returned  to  the  courts  of 
the  United  States  having  cognizance  of  the  offense;  and  on 
refusal  to  enter  into  such  recognizance,  the  magistrate  may 
imprison  the  person  so  refusing.!' 

A  person  committed  by  a  United  States  judge  can  be 
bailed  by  a  State  judge,  excej^t  in  a  capital  case,  if  there  be 
no  United  States  judge  in  the  district. 

*  3  H.  vii.,  c.  3. 

t  Act  of  Congress,  Sept.  24,  1879,  §  33,  and  Act  of  Congress,  March  23, 
1793,  §  4. 


144 

A  person  committed  by  a  State  judge  for  an  offense 
against  tlie  United  States,  the  same  or  another  State  judge 
may  bail.* 

§114.   The  Several  States. 

In  general,  in  the  several  States,  the  magistrates  before 
whom  the  examination  is  had  may  take  bail,  in  all  cases, 
except  those  punishable  capitally.t 

§  115.   The  Code — General  Towers  Conferred. 

"  When  the  defendant  has  been  held  to  answer,  as  pro- 
vided in  section  208,"  (ante,  §  104)  "  the  admission  to 
bail  may  be  by  the  magistrate  by  whom  he  is  so  held,  as 
follows : 

1.  By  any  of  the  magistrates  mentioned  in  section  147  " 
of  the  Code  (ante,  §  22)  "  when  the  crime  charged  is  a  mis- 
demeanor, or  a  felony  punishable  with  imprisonment,  not 
exceeding  five  years  ; 

2.  By  a  judge  of  the  Supreme  Court,  or  any  judge  author- 
ized to  preside  in  a  court  having  jurisdiction  to  try  indict- 
ments, m  all  cases  where  bail  may  be  taken,  before  con- 
viction, as  provided  in  section  554"  (of  the  Code).| 

Section  554  is  as  follows  : 

"Before  conviction,  a  defendant  may  be  admitted  to 
bail, 

1.  For  his  appearance  before  the  magistrate,  on  the 
examination  of  the  charge,  before  being  held  to  answer ; 

2.  To  appear  at  the  court  to  which  the  magistrate  is 
required,  by  section  221"  of  the  Code  (ante,  §  104)  "to 
return  the  depositions  and  statement,  upon  the  defendant 
being  held  to  answer,  after  examination  ; 

3.  After  indictment,  either  upon  the  bench  warrant  is- 
sued for  his  arrest,  or  upon  an  order  of  the  court  committing 
him,  or  enlarging  the  amount  of  bail,  or   upon  his  being 

*  5  Bin.  515;  McKin.  Am.  Mag.,  255,  256. 

t  1  Arch.  Cr.  Pr.  and  PI.,  169. 

1:§557. 


145 

surrendered  by  his  bail,  to  answer  the  indictment  in  the 
court  in  which  it  is  found,  or  to  which  it  may  be  sent  or 
removed  for  triaL" 

§  116.  By   Whom,  ivhen   Committing  Magistrate  has  no 

Power. 

"  When,  by  reason  of  the  degree  of  the  crime,  the  com- 
mitting magistrate  has  not  authority  to  admit  to  bail,  the 
defendant  may  be  admitted  to  bail  by  one  of  the  officers 
having  authority  to  admit  to  bail  in  the  case,  as  provided 
in  the  second  subdivision  "  of  section  557  of  the  Code  (ante, 
§  115),  "  or  by  the  court  to  which  the  depositions  and  state- 
ments are  returned  by  the  committing  magistrate,  as  provi- 
ded in  section  221 "  of  the  Code  (ante,  §  104),  "  if  the  case 
be  triable  therein,  or  if  not,  by  the  court  to  which,  after 
indictment,  it  may  be  sent  or  removed  for  trial."* 

§  117.  Hoio  long  Committing  Magistrate  retains  Power  to 

Bail. 

"  The  defendant  may  be  admitted  to  bail  by  a  magistrate, 
as  provided  in  "  sections  557  and  558  of  the  Code  (ante,  §§ 
115  and  116),  "  upon  being  held  to  answer,  or  at  any  time 
before  the  return  of  the  depositions  and  statement,  to  the 
court.  After  that  time  he  can  be  admitted  to  bail  only  by 
a  judge  presiding  in  the  court  in  which  the  crime  is  triable, 
if  it  be  sitting,  or  if  not,  by  one  of  the  magistrates  men- 
tioned in  the  second  subdivision  of  section  557"  of  the 
Code  (ante,  §  115).t 

§  118.  Notice  of  Ap2?lication  for  Bail   to   the  District 
Attorney  in   Cities. 

"In  the  several  cities  X  of  this  State,  if  the  crime  charged 
be  a  felony,  a  previous  notice  in  writing  of  at  least  two 

*  §  558.  t  §  559. 

X  See  note  to  Revisers'  Report  of  N.  Y.  Code  of    Crim.  Procedure,  p.  296 

(1850). 

10 


146 

days,  of  tbe   time  and  place  of  giving   the  bail,  must  be 
served  upon  the  district  attorney  of  the  county,  stating  : 

1.  The  names,  places  of  residence  and  occupations  of 
the  proposed  surety  or  sureties  ; 

2.  A  general  description  of  the  real  or  personal  property 
of  the  surety  or  sureties,  in  respect  to  which  they  propose 
to  justify  as  to  their  sufficiency,  with  the  incumbrances 
thereon,  by  mortgage,  judgment  or  otherwise,  if  any. 

The  district  attorney  may  waive  the  giving  of  the 
notice  herein  provided  for,  or  a  shorter  time  than  two  days 
may  be  directed  by  the  court  or  magistrate  requiring  the 
notice.  "* 

§  119.  Notice  may  be  Required  Etsewliere  by   Court  or 
Magistrate. 

"Except  as  "  immediately  above  prescribed," the  bail  may, 
in  the  exercise  of  a  just  discretion,  be  taken,  and  may  jus- 
tify, without  notice  to  the  district  attorney,  or  reasonable 
notice  of  the  intention  to  give  bail  may  be  required  by  the 
court  or  magistrate,  to  be  given  to  the  district  attorney." 
The  notice  shall  be  as  given  in  the  last  section.t 

§  120.   Order  or  Certificate  Granting  or  Denying  Bail. 

"If  the  application  for  bail  be  to  the  court,  an  order  must 
be  made,  granting  or  denying  it,  and  if  it  be  granted, 
stating  the  sum  in  which  bail  may  be  taken,  t 

"  If  the  application  be  to  a  magistrate,  he  must  certify,  in 
writing,  his  decision  granting  or  denying  the  same  ;  and  if 
he  grant  the  application,  must  state  in  the  certificate  the 
sum  in  which  bail  may  be  taken  ;  which  certificate  he  must 
cause  to  be  forthwith  filed  with  the  clerk  of  the  court  to 
which  the  depositions  and  statements  are  required  to  be 
sent.  II 

"If  the  defendant  be  admitted  to  bail  by  a  magistrate, 
the   bail   must  be  taken  by  the   magistrate  granting  the 

*§571.  t§5''0-  $§561.  i§562. 


147 

order,  unless  the  order  shall  specify  that  the  same  may  be 
taken  by  some  other  designated  magistrate."* 

§  121.  Neiu  Application  for  Bail  on  Denial  of. 

"  If  an  application  for  admission  to  bail,  made  to  a  magis- 
trate, be  denied,  not  more  than  two  subsequent  applications 
therefor  can  be  made  to  other  magistrates,  except  that  an 
application  can  be  made  to  any  magistrate  mentioned  in 
subdivision  2  of  section  557  "  of  the  Code  (ante,  §  115),  "  if 
no  application  has  been  previously  made  to  a  magistrate 
mentioned  therein."  f 

§  122.  Penalties  for  Illegal  Application. 

"  A  violation  "  of  which  prohibition  "  is  punishable  as  a 
misdemeanor,  and  the  admission  of  the  defendant  to  bail 
contrary  thereto,  may  be  revoked  by  the  magistrate  who 
made  it,  or  vacated  by  the  court  to  which  the  depositions 
and  statement  are  or  must  be  sent,  as  provided  in  section 
221  "  of  the  Code  (ante,  §  104),  "  or  to  which,  after  indict- 
ment, the  action  must  be  sent  for  trial."  J 

§  123.    Certain  Foioer  not  Limited. 

These  provisions  shall  not  be  construed  to  limit  the 
power  of  any  judge  presiding  in  the  court  in  which  the 
offense  is  triable  to  let  the  defendant  to  bail.  || 

§  124.    Whose  Decision  FinU'. 

"  The  decision  of  the  judge  presiding  in  the  court  in  which 
the  crime  is  triable,  granting  or  denying  bail,  is  final, 
except  as  provided  in  section  563  "  of  the  Code  (ante,  §  121).  IF 

*§567.  t§563.  t§564. 

II  §565.  1[§oGG. 


148 


CHAPTEK  VI. 

THE   SUBETIES. 

Section  125.  Qualifications. 

126.  Justification. 

127.  District  Attorney  or  Magistrate  may  Examine 

Sureties  beyond  tlieir  Justification. 

128.  Other  Testimony  may  be  Eeceived. 

129.  Order  on  Close  of  Examination  into  Bail. 


§  125.   Qualifications. 

"  The  qualifications  of  bail  are  as  follows  : 

1.  He  must  be  a  resident,  and  a  householder  or  freeholder 
within  the  State,  and,  unless  the  magistrate  otherwise  direct, 
within  the  county  ; 

2.  He  must  be  worth  the  amount  specified  in  the  under- 
taking, exclusive  of  property  exempt  from  execution ;  but 
the  magistrate,  on  taking  bail,  may  require  two  sureties,  or 
may  allow  two  or  more  to  justify  severally  in  amounts  less 
than  that  expressed  in  the  undertaking,  if  the  whole  justifi- 
cation be  equivalent  to  that  of  one  sufficient  surety."  * 

§  126.  Justification. 
"  The  surety  or  sureties  must  in  all  cases  justify  by  affida- 
vit, taken  before  the  magistrate.     The  affidavit  must  state 
that  each  of  the  sureties  possesses  the  qualifications  pro- 
vided "  in  the  last  section.f 

*  §  569. 

f  §  573 ;  1  Chit.  Cr.  L. ,  p.  99.  The  sureties  should  be  known  or  made 
known  to  the  officer  taking  the  bond,  so  that  its  execution  may,  should  it 
become  necessary,  be  proved  by  him  and  to   avoid    fraudulent  personation 

of  the  bondsmen. 


149 


§  127.  District   Attorney  or  Magistrate  may  Examine  them 
heyond  their  Justification. 

"  The  district  attorney,  or  the  magistrate,  may  further  ex- 
amine the  sureties  upon  oath,  concerning  their  sufficiency, 
in  su^h  manner  as  the  magistrate  may  deem  proper.  The 
questions  put  to  the  sureties,  and  their  answers,  must  be 
reduced  to  writing,  and  must  be  subscribed  by  them."  * 

§  128.   Other  Testimony  may  he  Beceived. 

"  The  magistrate  may  also  receive  other  testimony,  either 
for  or  against  the  sufficiency  of  the  bail,  and  may  from  time 
to  time  adjourn  the  taking  of  bail,  to  afford  an  opportunity 
of  proving  or  disproving  its  sufficiency."  t 

§  129.   Order  on  Close  of  Examination  into  Bail. 

"  When  the  examination  is  closed,  the  magistrate  must 
make  an  order,  either  allowing  or  disallowing  the  bail,  and 
must  forthwith  cause  the  same,  with  the  affidavits  of  justi- 
fication, and  the  undertaking  of  bail,  to  be  filed  with  the 
clerk  of  the  court  to  which  the  depositions  and  statement 
must  be  sent,  as  prescribed  in  section  221 "  of  the  Code 
(ante,  §  104). | 

*  §  57.3. 

f  §  574  ;  2  Hawkins'  PI.  Crown,  p.  141. 

1:§575. 


150 


CHAPTEK  VII. 

WHAT   BOND    SHOULD    CONTAIN. 

Section  130.  Necessary  Elements. 
131.  Form  of  Bond. 


§  130.  necessary  Elements. 

The  recognizance  sliould,  on  its  face,  show  that  the 
magistrate  had  jurisdiction  and  authority  to  demand  and 
receive  it  ;*  it  should  likewise  contain  the  date  of  taking  it, 
the  name  of  the  accused  and  his  sureties,  the  kind  of  of- 
fense for  which  the  party  is  to  answer,t  that  there  is  prob- 
able cause  for  believing  the  prisoner  guilty  of  it,|  the  pen- 
alty and  the  condition. 

As  to  the  effect  of  certain  omissions,  redundancies,  and 
errors  therein  there  have  been  numerous  decisions. § 

It  was  held  that  recognizances  which  merely  declared 
that  the  defendant  was  charged  with  a  criminal  offense 
without  reciting  that  the  magistrate  adjudged  that  there 
was  probable  cause  for  believing  him  guilty,  was  void,  || 
but  overruled,!  on  the  ground  that  the  same  rule  as  to  a 
mittimus  (commitment)  or  othei:  proceeding  of  that  nature, 

*  state  vs.  Smith,  2  Greenl.,  62 ;  Nicholson  vs.  State.  2  Kelley,  363 ;  Good- 
win vs.  Governor,  1  Stew,  and  Port.,  465  ;  Com.  vs.  Downey,  9  Mass.,  520, 
S.  P.;  Com.  vs.  Daggett,  16  Mass.,  447. 

f  Goodwin  vs.  Governor,  1  Stew,  and  Port.,  465;  Simpson  vs.  Common- 
wealth, 1  Dana,  523,  165  ;  People  vs.  Bundle,  6  Hill,  506. 

X  People  vs.  Koeber.  7  Hill,  39. 

§  Arch.  Grim.  Pr.  and  PL,  1  vol.,  p.  175,  et  seq. 

I  People  vs.  Koeber,  7  Hill,  43,  and  People  vs.  Young,  7  Id. ,  45. 

T[  People  vs.  Kane,  4  Denio,  530;  People  vs.  Champlain,  2  N.  Y.,  pp.  85 
and  86. 


151 

to  "which  the  assent  of  the  party  coukl  not  be  presumed  or 
supposed,  was  erroneously  applied  to  a  recognizance.  The 
presumption  is  in  favor  of  the  regularity  of  the  proceeding 
"which  led  to  the  recognizance. 

When  a  person  is  bailed  instead  of  being  delivered  into 
the  hands  of  the  sheriff,  or  keeper  of  the  jail,  the  prisoner 
is  kept  by  his  bail  and  must  be,  for  the  same  time  that  the 
keeper  of  the  jail  under  the  commitment  could  keep  him, 
until  the  sitting  of  the  next  court  having  cognizance  of  the 
offense.  Then,  if  the  grand  jury  fail  to  indict,  the  prisoner 
is  entitled  to  his  discharge.  This  is  the  practice  at  com- 
mon law.  Our  statute  *  makes  it  the  duty  of  the  Court  of 
Oyer  and  Terminer  and  Sessions,  within  twenty-four  hours 
after  the  discharge  of  the  grand  jury,  to  cause  every  person 
confined  in  the  county  prison  on  a  criminal  charge,  who 
shall  not  have  been  indicted,  to  be  discharged  without 
bail,  unless  satisfactory  cause  is  shown  for  detaining  him 
in  custody  or  for  requiring  him  to  give  bail. 

The  provision  of  the  statute  t  which  authorizes  the 
magistrate  taking  the  examination  to  require  the  prose- 
cutor and  all  the  material  witnesses  against  the  prisoner  to 
enter  into  a  recognizance  to  appear  and  testify  at  the  next 
court  having  cognizance  of  the  offense,  and  in  which  the 
prisoner  may  be  indicted,  likewise  determines  the  question 
as  to  the  time  when  the  bail  is  to  produce  the  principal.  If 
the  officer  taking  the  bail  can  require  the  j^risoner  to  give 
bail  for  his  appearance  at  the  next  court  but  one,  why  may 
he  not  as  well  put  it  at  the  third  or  fourth  court,  or  even 
at  a  longer  period,  and  great  oppression  might  result.:}: 

Where  a  justice  of  the  peace  has  power  to  act  only  in 
the  absence  of  a  police  justice  residing  in  the  same  town, 
the  legal  presumption  will  be,  in  the  absence  of  proof, 
that  he  did  not  transcend   his  duties. § 

*2R.  S.,  758,  §26. 

f  2  R.  S.,  part  IV.,  ch.  II.,  title  II.,  §21. 

t  People  vs.  Mack,  1  Park  Cr.  Rep.,  p.  507. 

§Ib. 


152 


§  131.  Form  of  Bond. 

According  to  the  Code,  "  bail  is  put  in,  by  a  written 
undertaking,  executed  by  sufficient  surety  (with  or  without 
the  defendants,  in  the  discretion  of  the  magistrate),  and 
acknowledged  before  the  magistrate  in  substantially  the 
following  form : 

'  An  order  having  been  made  on  the      day  of  18     , 

by  A.  B,,  a  justice  of  the  peace  of  the  town  of 
(or  as  the  case  may  be),  that  C.  D.  be  held  to  answer,  upon 
a  charge  of  (stating  briefly  the  nature   of  the  crime),   upon 
which  he  has  been  duly   admitted  to   bail,    in   the  sum    of 
dollars  ; 

'We,  C.  D.,  defendant  (if  the  defendant  join  in  the  under- 
taking), of  (stating  his  place  of  residence  and  occupation), 
and  G.  H.,of  (stating  his  place  of  residence  and  occupation), 
surety  (or  sureties  as  the  case  may  be),  hereby  undertake, 
that  the  above-named  C.  D.  shall  appear  and  answer  the 
charge  above  mentioned,  in  whatever  court  it  may  be  prose- 
cuted ;  and  shall  at  all  times  render  himself  amenable  to  the 
orders  and  process  of  the  court  ;  and,  if  convicted,  shall 
appear  for  judgment,  and  render  himself  in  execution 
thereof ;  or  if  he  fail  to  perform  either  of  these  conditions, 
that  we  will  pay  to  the  People  of  the  State  of  New  York 
the  sum  of  dollars '  (inserting  the  sum  in 

which  the  defendant  is  admitted  to  bail)."* 

Form  of  Bond  to  a  Court  of  Special  Sessions  in  Counties 
other  than  Neio  York. 

"  The  bail  must  be  taken  by  the  magistrate  by  a  written 
undertaking,  executed  by  the  defendant,  with  one  or  more 
sufficient  sureties,  approved  by  the  magistrate,  in  a  sum 
not  exceeding  two  hundred  dollars. t 

"  The  undertaking  must  be  in  substantially  the  following 
form  : 

*  §  508.  t  <^'ode,  §  737. 


153 

'A.  B.,  having  been  duly  charged  before  C.  D.,  a  justice 
of  the  peace  in  the  town  [or  city]  of  [as  the 

case  may  be],  with  the  offense  of  [designating  the  offense 
generally]. 

'  We  undertake  that  he  shall  appear  thereon,  from  time 
to  time,  until  judgment  at  a  court  of  Special  Sessions,  in 
the  town  [or  city]  of  [as  the  case  may  be], 

held  by  the  justice  above  named,  and  such  other  justices  as 
may  be  associated  with  him  to  constitute  such  court,  or 
that  we  will  pay  to  the  county  of  [naming  the 

county  in  which  the  court  is  held],  the  sum  of 
dollars'  [inserting  the  sum  fixed  by  the  magistrate]. 

*  Dated  at  the  town  [or  city]  of  ,'   [as  the  case 

may  be].  "  " 


CHAPTEE  VIII. 
§  132.  Form  of  Discharge  on  taking  Bail. 

The  Code  likewise  provides  that,  "  upon  the  allowance 
of  the  bail  and  the  execution  of  the  undertaking,  the  court 
or  magistrate  must  make  an  order,  signed  by  him,  with 
his  name  of  ofiice,  for  the  discharge  of  the  defendant,  to 
the  following  effect  : 

'  To  the  sheriff  of  the  county  of  '  [or,  in  the  city  and 

county  of  New  York,  '  to  the  keeper  of  the  city  prison  of 
New  York  '  ]  '  A.  B.,  who  is  detained  by  you  on  a  commit- 
ment to  answer  a  charge  for  the  crime  of,  [designating  it 
generally],  having  given  sufficient  bail  to  answer  the  same, 
you  are  commanded  forthwith  to  discharge  him  fi'om  your 
custody.'  "  t 

*  Code,  §  738.    Forfeiture  of  undertaking,  action  thereon,  and  remission  of 
forfeiture,  see  Code,  §§  739  and  740. 
t  §  5~6. 


154 


CHAPTEE  IX. 

§  133.   Certificate  of  Bail  being  Taken. 

"If  the  crime  be  bailable,  and  bail  be  taken  by  the 
magistrate,  the  following  words,  or  words  to  the  same 
effect,  must  be  added  to  the  indorsement  mentioned 
in  section  208  "  of  the  Code  (ante,  §  104),  "  and  I  have 
admitted  him  to  bail  to  answer,  by  the  undertaking  hereto 
annexed."  * 


CHAPTEE  X. 
§  184.  Liability  of  Bail. 

Bail,  at  one  time,  was  liable  for  all  legal  penalties  in- 
curred by  a  defaulter,  and  occasionally,  indeed,  would  seem 
to  be  made  to  share  the  fate  of  his  principal,  when  the 
latter  appeared  and  was  defeated. 

Now  he  is  liable  only  for  the  penalty  expressed  in  the 
bond. 

*  §  210 ;  see  section  104  ante,  as  to  transmission  of  bail  bond  ;  also  R.  S., 
part  iv  ,  ch.  ii.,  title  ii.,  §§  36,  27,  34  and  35. 


155 


CHAPTEK    XI. 

DUTIES   AND   LIABILITIES   OP   THE   BAILING   OFFICER. 

Section  135.  Must  Examination  be  first  had  before  Bailing 
Prisoner  ? 

136.  Prisoner  must  tender  Bail. 

137.  Sureties  Securing  Themselves. 

138.  Party  not  ready  with  Bail. 

139.  Unlawful  Bailing. 

140.  Acceptance  of  Bail  terminates  Jurisdiction. 

141.  Proper  Bail  must  be  Accepted. 


§  135.  Must  Examination  hejird  had  before  Bailing  Prisoner  ? 

The  examination  must  first  be  taken  ere  the  accused  can 
be  let  to  bail. 

By  the  1  and  2  of  Philip  and  Mary,  cap.  xiii.,  it  was 
directed,  as  we  have  seen,  that  owing  to  the  abuse  of  the  bail- 
ing power  alleged  to  exist  at  that  time,  the  examination  of  the 
complainant  and  his  witnesses  should  be  taken  in  writing, 
prior  to  bailing  the  prisoner,  in  order  that  the  character  of 
the  offense  charged  by  the  accuser  might  not  be  falsely 
stated. 

By  the  wording  of  the  Code  *  the  examination  can  be 
waived  and  bail  offered.  Should  the  arrest  be  by  warrant, 
the  taking  of  bail  immediately,  owing  to  the  existence  of  a 
written  complaint,  can  readily  follow,  biit  in  the  event 
of  the  arrest  being  without  warrant,  there  will  be  difficulties 
in  the  way  of  dispensing  with  the  examination  and  taking 
the  recognizance  of  the  defendant  at  once,t  but  the  bond 
without  an  examination  having  been  had  is  undoubtedly 
good. 

*  §  190.  t  See  ante,  §§  97,  98. 


156 


§  136.  Prisoner  must  tender  Bail. 

If  the  person  be  bailable  yet  tlie  justice  is  not  bound  to 
demand  bail,  but  the  prisoner  is  bound  to  tender  it, 
otherwise  the  justice  may  commit  him.* 

§  137.  Sureties  Securing  Themselves. 

The  fact  that  the  bail  have  received  transfers  of  property 
from  friends  of  the  accused,  in  order  to  enable  them  to 
qualify,  is  no  objection  to  them.t 

§  138.  Party  not  ready  with  Bail. 

If  the  party  is  not  ready  with  bail  at  the  time  he  is 
apprehended  and  examined,  and  the  offense  is  bailable,  he 
may  at  any  time  be  released  from  imprisonment  on  finding 
sureties.  J 

§  139.    Unlawful  Bailing. 

The  officer  taking  bail  must,  at  his  peril,  inform  himself  of 
the  cause  of  the  commitment  of  the  accused.§ 
'   And   the   bailing   of  a  person   not   bailable   by    law,  is 
punishable  either  at  common  law,  as  a  negligent  escape,  or 
as  an  offense  against  the  statute.  II 

If  the  party  be  bailed  by  insufiicient  sureties,  but  appears, 
it  seems  that  the  person  who  bailed  him  is  excused.!! 

§  140.  Acceptance  of  Bail  terminates  Jurisdiction. 

The  acceptance  by  a  committing  magistrate  of  bail,  to 
answer  in  any  case  pending  before  him,  terminates  his 
jurisdiction  of  the  case,  and  such  jurisdiction  cannot  be 
reinstated.*" 

*  2  Hale's  PI.  Cr.,  123  ;  Barb  Cr.  L.,  p.  576. 

t  People  vs.  IngersoU,  14  Abb.  Pr.,  N.  S.,  23. 

X  1  Burr,  460 ;  3  Hawk.,  c.  16,  §  1,  n.  i;  1  Nun.  and  Walsh,  383. 

§  Hawk.   Summary,   p.   90. 

U  lb.,  p.  89  :  People  vs.  Coon,  15  Wend.,  p.  277. 

lib. 

** People  ex  rel.  Phelps  vs.  Donohue,  14  Hun.,  p.  135. 


157 


§  141.  Proper  Bail  must  he  Accepted. 

The  power  to  let  to  bail  is  accompanied  by  a  duty  to 
accept  proper  bail,  and,  therefore,  to  refuse  or  delay  is  an 
offense  at  common  law  against  the  liberty  of  the  subject,  for 
which  the  magistrate  is  liable  in  damages  to  the  party 
injured.* 


CHAPTEK  XII. 

§  142.  New  Sureties. 

If  the  person  who  has  power  to  take  bail  be  so  far  imposed 
upon  as  to  suffer  a  prisoner  to  be  bailed  by  insufldcient 
persons,  he  or  any  other  person  who  has  power  to  bail 
him,  may  require  the  party  to  find  better  sureties,  and 
may  commit  him  on  his  refusal,  for  it  is  said  "  insufficient 
sureties  are  no  sureties."t 


CHAPTEE  XIII. 

§  143.  Acts  Ministerial  or  Judicial. 

The  duty  to  bail  has  been  supposed  to  be  ministerial, 
and  the  justice  or  other  officer  therefore  obliged  to  allow 
bail  under  peril  of  prosecution,  but  in  an  action  against  a 
magistrate  brought  on  this  theory  for  refusing  to  admit  to 
bail  a  prisoner  charged  with  misdemeanor,  it  was  held  that 
there  was  no  liability  attaching  to  the  officer  without  proof 
of  malice,  on  the  ground  that  his  duty  was  not  simply  and 
purely  ministerial,  but  judicial.  | 

*  2  Stark  Ev.,  5tli  American  ed.,  428,  n.  1  ;  2  Hawk.  p.  90;  Davis,  J.,  83. 
f  Hawkins'  Summary,  Book  2,  p.  89 ;  Barb.  Cr.   L.,  p.  579. 
tLinford  vs.  Fitzroy,  New  Mag.  Cases,  vol.  3,  p.  144;  Reg.  vs.  Badger,  4 
Q.  B.,  468. 


158 

However  this  may  be  respecting  misdemeanor,  the  ques- 
tion whether  bail  shall  be  allowed  or  not  is  in  all  cases  of 
felony  purely  judicial,  not  only  before  the  appellate  court 
or  officer,  but  before  the  committing  magistrate  or  court. 
The  statutes  in  giving  power  to  bail  create  no  ministerial 
duty  and  impose  no  obligation  beyond  what  rests  upon  any 
judge  in  the  exercise  of  his  powers  as  such.  Thus  the 
direction  to  the  court  or  officer  to  proceed  and  let  the 
party  to  bail  if  the  case  be  bailable,  although  mandatory 
in  form,  can  only  mean  when  it  is  properly  bailable.* 

It  has  been  said  that  an  action  cannot  be  maintained  for 
refusing  to  admit  to  bail,  except  on  proof  of  malice.f 


CHAPTEE  XIY. 

§  144.  Deposit  in  Lieu  of  Bail. 

The  Code  on  this  subject  contains  the  following  sections : 

"  The  defendant,  at  anytime  after  an  order  admitting  him 
to  bail,  instead  of  giving  bail,  may  deposit  with  the  county 
treasiirer,  of  the  county  in  which  he  is  held  to  answer,  the 
sum  mentioned  in  the  order ;  and  upon  delivering  to  the 
officer,  in  whose  custody  he  is,  a  certificate  of  the  deposit, 
he  must  be  discharged  from  custody."^ 

"  If  the  defendant  have  given  bail,  he  may,  at  any  time 
before  the  forfeiture  of  the  undertaking,  in  like  manner 
deposit  the  sum  mentioned  in  the  undertaking ;  and  upon 
the  deposit  being  made  the  bail  is  exonerated,"!! 

"  If  money  be  deposited,  as  provided  in  the  last  section, 
bail  ma}'-  be  given,  in  the  same  manner  as  if  it  had  been 

*  People  V.  Cunningham,  3  Park  Cr.  K.,  p.  541  ;  3  Hill  (appendix),  p.  673 ; 
People  V.  Donohue,  14  Hun.,  p.  133. 
t  Linford  v.  Fitzroy,  18  L.  J.,  M.  C,  108;  13  L.  T.,  158;   13  Q.  B.,  240. 

1:§586. 

1  §  587. 


159 

originally  given  upon  the  order  for  admission  to  bail,  at 
any  time  before  the  forfeiture  of  the  deposit.  The  court 
or  magistrate  before  whom  the  bail  is  taken  must  there- 
upon direct,  in  the  order  of  allowance,  that  the  money 
deposited  be  refunded  by  the  county  treasurer  to  the 
defendant;  and  it  must  be  refunded  accordingly,"* 

"  When  money  has  been  deposited,  if  it  remain  on  deposit 
and  unforfeited  at  the  time  of  a  judgment  for  the  payment 
of  a  fine,  the  county  treasurer  must,  under  direction  of  the 
court,  apply  the  money  in  satisfaction  thereof,  and  after 
satisfying  the  fine,  must  refund  the  surplus,  if  any,  to  the 
defendant."t 

When  a  statute  provides  that  there  shall  be  a  recogni- 
zance, money  cannot  be  received  by  the  court  in  lieu  of  or 
as  a  substitute  for  bail.:}: 


CHAPTEE  XV. 

§  145.  Surrender. 

A  man's  bail,  if  they  suspect  him,  may  bring  him  before 
a  justice  of  the  peace,  by  whom  he  may  be  committed, 
unless  he  find  new  sureties,§  when  he  may  be  bailed  again.|| 

The  provisions  of  the  Code  are  in  these  words  : 

"  At  any  time  before  the  forfeiture  of  the  undertaking, 
any  surety  may  surrender  the  defendant  in  his  exonera- 
tion, or  the  defendant  may  surrender  himself,  to  the  ofiicer 
to  whose  custody  he  was  committed  at  the  time  of  giving 
bail,  in  the  following  manner  : 

1.  A  certified  copy  of  the  undertaking  of  the  bail  must 
be  delivered  to  the  officer,  who  must  detain  the  defendant 


*§588. 

t  §  589. 

X  Butler  vs.  Foster,  14  Ala. ,  32.3. 

§  Hawk.  Sumtaary,  88. 

11  Kellogg  vs.  State,  43   Mss.,  57;  Hale,  PI.  Cr.,  Book  2,  p.  186. 


160 

in  his  custody  thereon,  as  upon  a  commitment,  and  by  a 
certificate  in  writing,  acknowledge  the  surrender. 

2.  Upon  the  undertaking  and  the  certificate  of  the  officer, 
the  court  in  which  the  indictment  or  the  appeal,  as  the 
case  may  be,  is  pending,  may,  upon  a  notice  of  five  days  to 
the  district  attorney  of  the  county,  with  a  copy  of  the 
undertaking  and  certificate,  order  that  the  bail  be  exoner- 
ated ;  and  on  filing  the  order  and  the  papers  used  on  the 
application,  the  bail  is  exonerated  accordingly."* 

"For  the  purpose  of  surrendering  the  defendant,  any 
surety  at  any  time  before  he  is  finally  charged,  and  at  any 
place  within  the  State,  may  himself  arrest  him  ;  or  by  a 
written  authority,  indorsed  on  a  certified  copy  of  the  under- 
taking, may  empower  any  person  of  suitable  age  and  discre- 
tion to  do  so."t 

"If  money  have  been  deposited  instead  of  bail  and  the 
defendant  at  any  time  before  the  forfeiture  thereof  surren- 
der himself  to  the  officer  to  whom  the  commitment  was 
directed,  in  the  manner  provided  in  section  590 "  of  the 
Code  (ante,  this  section),  "  the  court  must  order  a  return  of 
the  deposit  to  the  defendant,  upon  producing  the  certifi- 
cate of  the  officer  showing  the  surrender,  and  upon  a 
notice  of  five  days  to  the  district  attorney,  with  a  copy  of 
the  certificate."! 

*  §  590.  t  §  591.  t  %  592. 


161 


COMMITMENT. 


Chapter  I. — Temporary  Commitment. 
"       II. — Final  Commitment. 


CHAPTER  I. 


TEMPORARY   COMMITMENT. 


Section  146.  Custody  of  Prisoner  in  Officer,  until  Com- 
mitted. 

147.  Commitment  for  further  Examination. 

148.  Until  Final  Commitment  is  made  out. 


§  146.    Custody  of  Prisoner  in  Officer  until  Committed. 

Wlien  tlie  prisoner  is  brought  before  the  justice,  he  is 
still  considered  to  be  in  the  custody  of  the  officer  until  he 
has  been  either  discharged,  bailed,  or  committed  to 
prison.* 

§  147.   Commitment  for  further  Examination. 

A  commitment  for  further  examination  must  not  be  made 
use  of  as  a  commitment  for  trial,  the  former  being  limited 
to  a  reasonable  time.  A  commitment  for  further  examina- 
tion is  not  a  proceeding  against  the  j)arty,  but  a  proceeding 
for  his  benefit,  with  a  view  to  protect  him  against  a  commit- 

*  2  Hale,  PI.  Cr. ,  120. 
11 


162 

meut  for  trial,  if  it  can  be  found  that  there  is  not  sufficient 
ground  for  the  latter.* 

By  the  Code  such  commitment  "is  by  an  indorsement 
signed  by  the  magistrate,  on  the  warrant  of  arrest,  to  the 
following  effect,  as  heretofore  given  :  '  The  within  named 
A.  B.  having  been  brought  before  me  under  this  warrant, 
is  committed  for  examination  to  the  sheriff  of  the  county 
of  ,'  or  in  the  city  and  county  of  New  York, 

*  to  the  keejjer  of  the  city  prison  of  the  city  of  New  York.'  "  t 

§  148.    Until  Final  Commitment  is  made  out. 

After  the  magistrate  has  determined  on  committing  the 
party,  he  may  verbally  authorize  the  constable  to  detain 
him  until  he  can  make  out  his  mittimus,:}:  or  the  party  may 
be  committed  to  custody  while  the  warrant  of  commitment 
is  being  made  out,  but  no  longer,  for  the  reason  given, 
"  that  the  party  is  thereby  deprived  of  the  advantage  of  a 
habeas  corpus,  since  the  jailer  could  make  no  return  to 
such  a  writ."  § 

*3Dow'sRep.,  184. 

tl93. 

i  7  East.,  533;  3  Smith,  K.  B.,  513  ;  2  Hale,  123. 

§  Hutchinsoa  vs.  Lowndes,  1  Nev.  &  Man.  Cases,  p.  478. 


i 


103 


CHAPTER  11. 


FINAL  COMMITMENT. 


Section  149.  Nature  of  tlie  Offense  to  Appear, 

150.  Authority  to  Commit. 

151.  To  Whom  Directed. 

152.  Seal. 

153.  Tlie  Code. 


§  1-19.  Nature  of  the  Offense  to  AjJj^ear. 

By  the  common  law,  a  warrant  of  commitment  for  an 
oflfeuse  must,  upon  its  face,  show  the  cause  of  commitment 
and  the  nature  of  the  offense  charged,  so  far  at  least 
as  to  show  that  the  same  was  within  the  jurisdiction  of  the 
committing  officer.  Where  the  commitment  is  not  for  an 
actual  offense,  but  merely  to  obtain  security  against  an 
apprehended  offense,  the  warrant  must,  upon  its  face,  show 
the  cause  of  committal  ;  that  is,  the  direction  of  the  magis- 
trate that  the  j^arty  should  find  surety  and  the  neglect  of 
such  party  to  do  so.* 

This  is  also  in  accordance  with  the  provisions  of  the 
Revised  Statutes  on  this  subject,  which  direct  the  warrant 
to  specify  the  cause  of  commitment  and  the  sum  in  which 
security  w^as  required  to  be  given.t 

The  particular  sj^ecies  of  crime  should  be  given  with 
convenient  certainty,!  ^^^  i^  is  safe  to  set  forth  that  the 
party  has  been  charged  upon  oath  ;  but  this  is  not  necessary 
because  a  commitment  for  treason  or  for  suspicion  of  it, 

*  Bradstreet  m.    Ferguson,   23  W.,   641  ;    AtkinBon  vs.  Carty,   1  Jebb.ifc 
Symes,  R.  Q.  B.,Irel.,  369. 
fBR.  S..  6lhed.,  997.  §5. 
t  2  Hawk.  c.  16,  §  16  ;  1  Hale,  584. 


164 

without  setting  forth  any  particular  accusation  or  ground 
of  suspicion,  is  valid,  and  because  a  commitment  may  be 
super  visum  when  an  oath  is  not  necessary.* 

§  150.  Authority  to  Commit, 

In  a  case  where  it  did  not  appear  by  the  warrant  that  the 
person  committing  had  authority  to  commit,  the  court  said, 
"that  it  is  not  necessary  that  an  authority  to  commit 
should  appear  in  a  warrant  of  commitment,"t  for  that  may 
be  supplied  by  averment.  J  It  is,  however,  usual  and  best  to 
state  the  authority,!  but  that  is  always  upon  the  petition. 

In -a  conviction,  an  authority  to  convict  must  appear, 
because  convicting  is  a  judicial  act,  but  an  authority  to 
commit  need  not  appear  in  a  warrant  of  commitment, 
because  the  issuing  of  such  a  warrant  is  a  ministerial  act. 
If  it  be  not  necessary  that  an  authority  to  commit  should 
appear  in  a  warrant  of  commitment,  the  court  will  never 
intend  a  want  of  authority  in  the  person  who  issued  the 
warrant ;  but,  until  the  contrary  appears,  will  presume  that 
he  had  an  autliority.il 

§  151.   To  Whom  Directed. 

The  commitment  should  be  "  to  the  sheriff  or  any 
constable,  and  to  the  jailer  and  keeper  of  the  prison,"  and  be 
generally  to  carry  the  party  to  prison. ■[  When  thus  directed, 
it  commands  the  former  to  convey  the  23risoner  into  the 
custody  of  the  latter,  and  the  latter  to  receive  and  keep 
him.*" 

The  commitment  should  point  out  the  place  of  imprison- 
ment and  should  have  an  apt  conclusion,  namely,  to  detain 

*  1  Ch.  Cr.  L.,  110;  2  Va.  Cases,  504. 

f  Eex  m  Goodall,  Sayer,  129  (1754). 

X  Bum's  Justice  of  the  Peace,  title  Commitment  iii. 

§6  Mod.,  78,  75. 

II  Resf«.  Talbot,  Mich.,  4  Geo.  2. 

•^  2  Hawk.  C.  16,  §13;  2  Strange,  934;   1  Ld.   Raym.,  424, 

*•■  1  ArchCr.  and  PL,  149. 


165 

the  j)arty  "  until  he  shall  be  discharged  by  due  course  of 
law ;  which  words  are  sufficient  where  the  party  is  com- 
mitted for  an  offense  not  bailable,  and  where  he  is  com- 
mitted for  want  of  sureties,  it  is  usual  to  direct  the  jailer 
to  keep  the  prisoner  in  his  said  custody  for  want  of  sureties, 
or  until  he  shall  be  discharged  by  due  course  of  law.* 

§  152.  >S'e«7. 

Blackstone  and  other  early  elementary  writers  claim  that 
the  warrant  of  commitment  should  have  a  seal,f  which 
claim  it  seems  was  based  on  the  authority  of  a  casej  now 
regarded  as  of  no  value,  since  the  point  in  question  did  not 
arise,  but  was  merely  a  dictum  put  by  way  of  illustration,! 
and  that  the  warrant  does  not  ex  vi  termini,  by  force  of  the 
term,  import  an  instrument  under  the  seal  of  the  court,  but 
signifies  no  more  than  an  authority,!!  unless  particularly 
required  by  an  act  of  parliament.  IT 

The  current  of  decisions  in  England,  since  those  to  the 
contrary  referred  to,  has  been  that  a  seal  to  a  warrant  even 
in  criminal  cases  is  not  necessary.  In  Scotland,  also,  the 
warrant  need  not  be  under  seal,**  and  in  this  State  it  is  now 
also  settled  that  no  seal  is  necessary. ft 

§  153.   The  Code. 

The  directions  of  the  Code  respecting  the  final  com-" 
mitment  are  as  follows  : 

"  If  the  magistrate  order  the  defendant  to  be  committed 
*       *       *       he  must    make  out  a  commitment,  signed  by 

*1  Chit.  Cr.  L.,  p.  114. 

t  4  Blackstone,  290;  1  Hale,  577;  2  Hale,  111;  Dalt.  C,  117  ;  3  Inst., 
76. 

X  14  Hen.  VIII.,  fol.  16. 

§  Amer.  ed.,  Willes  Kep.,  412,  note  c. 

lib. 

IBuller  (N.  P.  Cas.),  83. 

**  2  Allison's  Crira.  Law,  122,  123. 

ff  Bennac  m.  People,  4  Barb.,  31 ;  Millett  vs.  Baker,  42  Barb.,  215  ;  Gano 
vs.  Hall,  42  N.  Y.,  67. 


166 

liim,  with  his  name  of  office,  and  deliver  it,  with  the  defend- 
ant, to  the  officer  to  whom  he  is  comm  itted,  or  if  that 
officer  be  not  present,  to  a  peace  officer,  who  must  immedi- 
ately deliver  the  defendant  into  the  proper  custody, 
together  with  the  commitment."^" 

"  The  commitment  must  be  to  the  following  effect : 
'County  of   Albany  [or  as  the  case    may  be]. 
'  In  the  name  of  the  people  of  the  State  of  New  York  : 
'  To  the  sheriff  of  the  county  of  Albany,'  [or  in  the  city 
and  county  of  New  York,  '  to  the  keeper  of  the  city  prison 
of  the  city  of  New  York].' 

*  An  order  having  been  this  day  made  by  me,  that  A.  B. 
be  held  to  answer  to  the  court  of  ,  upon  a 

charge  of  [stating  briefly  the  nature  of  the  crime],  you  are 
commanded  to  receive  him  into  your  custody  and  detain 
him,  until  he  be  legally  discharged. 

'  Dated  at  the  city  of  Albany,  [or  as  the  case  may  be], 
this  day  of  ,  18        . 

*  C.  D.,  Justice  of  the  Peace, 

[or  as  the  case  maybe].'  "  t 

As  to  the  transmission  of  the  papers  in  the  examination 
see  ante,  §  104. 

Proceedings  respecting  Courts  of  Special  Sessions  in  Counties 
other  than  New  York. 

"  During  the  time  allowed  to  the  defendant  to  give  bail, 
and  until  judgment  is  given,  he  may  be  continued  in  the 
custody  of  the  officer,  or  committed  to  the  jail  of  the 
county  to  answer  the  charge,  as  the  magistrate  may 
direct."! 

"  The  commitment  must  be  signed  by  the  magistrate, 
by  his  name  of  office,  and  must  be  in  substantially  the 
following  form  : 

'  The  sheriff  of  the  county  of  is  required 

to  receive  and  detain  A.  B.,  who  stands   charged  before 

*  §  213  f  §  214.  t  Code,  §  733. 


167 

me  for  [designating  the  offense,  generally],  to  answer  the 
charge  before  a  court  of  special  sessions  in  the  town  [or 
city]  of  ,  [as  the  case  may  be]. 

'  Dated  at  the  town  [or  city]    of  ,  the 

day  of  ,  18     . 

'CD.,  Justice  of  the  Peace  of  the  town 
[or  city]  of  ,  [as 

the  case  may  be].'  "" 
"  "When  committed,  the    defendant   must  be  delivered  to 
the  custody  of  the  proper  officer,  by  any  peace  officer  in  the 
county  to   whom   the  magistrate   may  deliver  the  commit- 
ment.''! 

"  Either  before  or  after  his  committal,  or  upon  being 
committed,  the  defendant  must,  if  he  require  it,  be  ad- 
mitted to  bail."t 

*  Code,  §  734.  f  Code,  §  735.  X  Code,  ^  736. 


168 


x^.a.:e^t  iik. 


FUGITIVES    FROM    JUSTICE, 

Chapter  L  General  Doctrine. 

11.  Who  may  be  treated  us  Fugitives. 

III.  The  Arrest. 

IV.  Hearing  on  the  Arrest. 
Y.  Surrender,  etc. 

VI.  Commitment,  etc. 
VII.  Bail. 


CHAPTEK  I. 

GENEEAL  DOCTRINE. 

Section  154.  Relation   of    the   United    States  to   Foreign 
Powers. 

155.  Relation    of    individual    States    to    Foreign 

Powers. 

156.  Relation  between  the  States  and  the  United 

States,  between  the  States  themselves,  the 
Territories  and  States,  and  between  the 
Territories. 


§  154.  Relation  of  the  United  States  to  Foreign  Poivers. 

A  foreign  power  cannot  carry  away  a  fugitive  from  its 
justice  found  within  our  territory  ;  for  the  arrest  would  be 
an  unwarrantable  interference  with  the  local  sovereignty  of 


169 

our  government.*  The  surrender  of  fugitives  from  justice 
being  against  the  doctrine  of  our  tribunals,  is  undertaken 
only  in  obedience  to  the  terms  of  treaties  with  foreign 
governments.!  The  need  of  legislation  when  required  to 
give  effect  to  treaties  has  been  supplied,  not  by  a  par- 
ticular statute  for  each  treaty,  but  by  general  provisions 
for  all.:j: 

§  155.  Relation  of  Individual  States  to  Foreign  Powers. 

The  whole  subject  of  foreign  intercourse  is  committed  to 
the  Federal  Government  by  the  Constitution  of  the  United 
States,and  therefore  the  power  to  surrender  to  a  foreign  State 
a  fugitive  from  justice,  does  not  reside  in  any  of  the  States 
of  the  Union,  but  belongs  to  the  Federal  Government  ex- 
clusively. §  In  any  event,  no  State  can  be  compelled  to 
take  such  action.  || 

The  provisions  of  the  N.  Y.  Kevised  Statutes,!  providing 
for  the  surrender  of  foreign  criminals,  is  unconstitutional, 
and  a  warrant  issued  by  the  Governor  in  pursuance  thereof 
is  void.** 

§  156.  Relation  between  the  States  and>  the  United  States,  be- 
tioeen  the  States  themselves,  the  Territories  and  States, 
and  between  the  Territories. 

Since  the  United  States  Government  has  a  local  juris- 
diction within  the  States,  it  needs  no  help  from  the  States 
to  arrest  its  criminals  found  within  State  limits.tt 

As  between  the  States  the  Constitution  of  the  United 

*  1  vol.  Bish.  on  Crim.  Law,  §  135 ;  1  Kent's  Com.  36-37,  notes  b,  c,  d. 

fib. 

jl  Bishop  Cr.  Proc,  §224. 

§lBish.  Cr.  L.,  §135. 

I  The  British  Prisoners,  1  Woodbury  &  Min.  C.C.  R.,  GG. 

II  R.  S.,  164,  §§8-11. 

**  People  vs.  Curtis,  50  N.  Y.,  321. 
ffl  Bish.  Cr.  Proc,  §  223  b. 


170 


States*  being  in  the  nature  of  a  treaty  stipulation  between 
the  States,  requires  the  surrender  of  fugitives  from  justice 
on  demand  of  the  executive  of  the  State  whence  they  es- 
caped.! As  between  the  territory  and  the  States  and 
territories  there  is  a  statutory  provision  applicable  regulat- 
ing the  surrender-! 


*  Const.  U.  S.,  art.  iv.,  §3. 
tl  Bish.  Cr.  L.,  §  135. 
X  1  Bish.  Crim   Proc,  §  223  b. 


171 


CHAPTER  11. 

WHO   MAY   BE   TREATED   AS   FUGITIVES. 

Section  157.  The  Offense. 

158.  The  Fleeing  from  Justice. 

159.  Where  to  be  Found. 

160.  The  Code. 


§  157.   The  Offense. 

When  the  proceeding  is  under  the  comity  of  nations, 
crimes  of  great  atrocity  or  deeply  affecting  the  public  safety, 
only  are  recognized."  As  between  the  States,  the  offense 
must  be  treason,  felony,  or  other  crime,  as  is  provided  by 
the  Constitution  of  the  United  States.f 

The  words  "  other  crime ''  include  statutory  as  well  as 
common  law  offenses,  and  as  laid  down  by  Taney,  C.  J.,  em- 
brace every  act  forbidden  and  made  punishable  by  a  law 
of  the  State  in  which  it  was  committed.  The  words 
"  treason  and  felony,"  in  being  associated  with  the  word 
"  crime,"  were  deemed  to  be  to  exclude  the  possible  con- 
struction that  political  offenders  were  not  to  be  surrendered 
the  same  as  others.  | 

§  158.   The  Fleeing  from  Justice. 

To  constitute  a  "  fleeing,"  he  need  only  depart  from  the 
State  without  waiting  to  abide  the  consequences  of  his  act,§ 
and  it  is  immaterial  that  the  place  to  which  he  goes  is  his 
own  home. 


*  Matter  of  Clark,  9  Wend.,  212. 
\  U.  S.  Const.,  art.  iv.,  §2. 
X\  Bish.  Crim.  Proc,  §220. 
§Ib. 


172 

It  must  appear  tliat  the  person  sought  to  be  apprehended 
or  detained  has  left  the  State  in  which  he  committed  the 
crime  for  the  purpose  of  escaping  punishment  for  it.* 

§  159.    Where  to  be  Found 

The  fugitive  must  be  found  within  the  territory  where 
the  process  sought  for  will  be  recognized  and  can  be 
executed. 

§160.   The  Code. 

A  person  charged  in  any  State  or  territory  of  the  United 
States  with  treason,  felony,  or  other  crime,  who  shall  flee 
from  justice,  and  be  found  in  this  State,  must,  on  demand 
of  the  executive  authority  of  the  State  or  territory  from 
which  he  fled,  be  delivered  up  by  the  governor  of  this 
State,  to  be  removed  to  the  State  or  territory  having  juris- 
diction of  the  crime.f 


*  Bega.ntm.  Michael,  2  Carter  (Ind.),  396. 

t  §  827. 


173 


/ 


CHAPTEE  III. 

THE   ARREST. 


Section  161.  Ou  a  Requisition. 

162.  Anticipating  a  Requisition. 


§  161.   On  a  Requisition. 

It  is  not  within  the  scope  of  this  work  to  treat  of  arrests 
by  the  executive  of  the  State  after  requisition,  as  thev 
involve  no  commitment.  The  question  of  the  guilt  or  in- 
nocence of  the  person  demanded  is  irrelevant  to  the  ex- 
ecutive. That  question  is  to  be  investigated  and  deter- 
mined by  the  courts  of  the  State  where  the  alleged  crime 
was  committed.* 

Under  the  act  of  Congress,  no  steps  are  required  in  the 
State  to  which  the  fugitive  has  fled,  until  a  requisition  has 
been  made  by  the  governor  of  the  State  in  which  the 
offense  has  been  committed.f 

The  act  of  Congress  must  be  strictly  complied  with.  The 
certificate  of  the  Secretary  of  State  cannot  take  the  place  of 
the  requirement  of  the  act  that  the  authentication  shall  be 
by  the  governor  or  chief  magistrate.:]: 

Judges  of  the  United  States  Courts  have  no  jurisdiction 
over  proceedings  under  any  extradition  treaty,  unless  a  j)re- 
yious  requisition  has  been  made  by  the  foreign  government 
upon  the  government  of  the  United  States,  and  the  au- 
thority of  the  United  States  Executive  has  thereupon  been 
obtained  to  arrest  the  fugitive.  § 

*  People  V.  Brady,  5G,  N.  Y.,  187;  1  Arch.  Cr.  Pr.  and  PI.,  p.  I'^G, 
Pomeroy's  Notes. 

f  People  V.  Brady,  56  N.  Y.,  182. 

X  Solomon's  case,  1  Abb.  Prac.  Rep.  N.  S.,  347. 

§  1  vol.,  Arch.  Crim.  Pr.  &  PL,  p.  121. 


174 


§  162.  Anticipating  a  Beqidsition. 

Some  of  the  State  statutes  authorize  the  supposed  fugi- 
tive to  be  first  complained  of,  examined  and  committed 
where  he  is  found,  to  await  a  requisition  from  the  proper 
executive ;  some  do  not  have  such  provisions  ;  while  others 
provide  an  intermediary  course.  In  some  of  the  States 
such  preliminary  steps  are  permissible  without  the  aid  of 
a  statute- — all  of  which  proceedings  are  merely  auxil- 
iary and  seek  to  secure  the  end  named  in  the  Constitution 
and  laws  of  the  United  States,  the  ultimate  transfer  of  the 
accused  on  requisition  by  the  authority  of  the  State  or 
territory  where  the  offense  is  alleged  to  have  been  com- 
mitted.f 

To  authorize  a  magistrate  to  arrest  and  examine  an  al- 
leged fugitive  from  another  State  it  must  be  distinctly 
alleged  by  a  complaint  in  writing  on  oath  : 

1.  That  a  crime  has  been  committed  in  the  foreign  State. 

2.  That  the  accused— the  identity  of  the  prisoner  as  the 
party  charged  must  appear:}: — has  been  charged  in  such 
State  with  the  commission  of  such  crime. 

3.  That  he  has  fled  from  the  State. 

4.  That  he  is  here.  § 

It  would  be  well  for  magistrates  to  require  in  all  such 
cases  an  authenticated  copy  of  the  charge  or  complaint 
made  in  the  foreign  State.  II 
>  The  magistrate  may  look  behind  a  warrant  in  order  to 
ascertain  whether  the  complaint  made  is  sufficient  to  con- 
fer jurisdiction.^  And  the  sufficiency  of  the  indictment 
should  be  inquired  into  before  surrendering,  to  determine 
if  a  crime  is  charged.' 


■K"!f 


*  1  Bish.  Cr.  Proc,  §  223, 

f  Spear's  Law  of  Extradition,  p.  244. 

tl8  Alb.  L.  J.,  369. 

§  Matter  of  Hey  ward,  1  Sandf.  R.,  701. 

lib. 

II  In  re  Heilbron,  1  Park  Cr.  Rep.,  429. 

**  People  vs.  Brady,  56  N.  Y.,  193;  Matter  of  HeUbron,  1  Park  Cr.,  429. 


175 

•  Courts  do  not  take  judicial  notice  of  the  laws  of  another 
State.  The  presumption,  in  the  absence  of  proof,  is  that 
its  courts  agree  with  our  own  in  declaring  and  interpret- 
ing the  common  law." 

The  Code. 

The  Code  provides  that  any  magistrate  may  issue  a  war- 
rant for  the  apprehension  of  a  person  charged  in  any  State 
or  territory  of  the  United  States  with  treason,  felony  or 
other  crime  who  shall  flee  from  justice  and  be  found  in  this 
State,t  and  an  exemplified  copy  of  an  indictment  found,  or 
other  judicial  proceeding  had  against  him  in  the  State  or 
territory  in  which  he  is  charged  to  have  committed  the 
offense,  may  be  received  as  evidence  before  the  magistrate.:}: 

*  56  N.  Y.,  183. 
t  Code,  §  828. 
X  Code,  §  829. 


176 


CHAPTER  IV. 

THE  HEARING  ON  THE  ARREST. 

Section  163.  How  mucli  shall  be  Shown. 
164  The  Code. 
165.  Review  of  the  Proceedings. 


§  163.  Hoic  much  shall  he  Shown. 

On  a  hearing  to  release  a  party  proposed  to  be  detained 
for  surrender  to  a  foreign  government,  it  was  held  that  the 
evidence  to  warrant  such  detention  must  be  sufficient  to 
commit  the  party  for  trial  if  the  offense  were  committed 
here.* 

It  appears  to  be  the  practice  both  in  England  and  the 
United  States  before  surrendering  a  foreign  fugitive  from 
justice  to  demand  that  probable  cause  be  shown  that  the 
defendant  was  guilty  of  an  offense  for  which  he  is  de- 
manded.! 

§  161.   The  Code. 

The  Code  provides  that : 

"  The  proceedings  for  the  arrest  and  commitment  of  the 
person  charged  are  in  all  respects  similar  to  those  pro- 
vided in  this  Code  for  the  arrest  and  commitment  of  a 
person  charged  with  a  public  offense  committed  in  this 
State ;  except,"  as  has  appeared,  "that  an  exemplified  copy 
of  an  indictment  found,  or  other  judicial  proceeding  had 
against  him,  in  the  State  or  territory  in  which  he  is  charged 

*  Matter  of  Daniel  Washburn,  3  Wheeler's  Grim.  Cases,  p.  482  ;  S.  C,  4 
Johns.  Chan.  R.,  106. 

f  Wharton's  Cr.  PI.  &  Pr.,  §  5G,  8th  ed. 


177 


to  have  committed  the  offense,  maybe  received  as  evidence 
before  the  magistrate."* 

"  If,  from  the  examination,  it  appear  that  the  person 
charged  has  committed  the  crime  alleged,  the  magistrate 
by  warrant"  must  commit.f 

"  Immediately  upon  the  arrest  of  the  person  charged, 
the  magistrate  must  give  notice  to  the  district  attorney  of 
the  county  of  the  name  of  the  person  and  the  cause  of  his 
arrest,"! 

"  The  district  attorney  must  immediately  thereafter  give 
notice  to  the  executive  authority  of  the  State  or  territory, 
or  to  the  prosecuting  attorney  or  presiding  judge  of  the 
criminal  court  of  the  city  or  county  therein,  having  juris- 
diction of  the  offense,  to  the  end  that  a  demand  may  be 
made  for  the  arrest  and  surrender  of  the  person  charged."§ 

§  165.  Revieiv  of  the  Proceedings. 

A  competent  court  may,  on  habeas  covjjks,  revise  the  pro- 
ceedings, and,  if  they  are  defective,  discharge  the  fugitive. 
But  the  question  of  actual  or  even  probable  guilt  -will  not 
be  inquired  into,  nor  will  the  formal  sufficiency  of  the 
indictment  if  it  substantially  charges  a  crime.  II 

On  a  decision  against  a  prisoner,  the  court  allowed  a 
writ  of  error,  but  the  statute  not  providing  either  for  his 
detention  or  bail  in  the  interim,  the  court  could  not  grant  a 
stay  of  proceedings. IF 

*  §  829. 

f  830;  see  R.  S.,  part  iv.,  ch.  ii.,  title  ii.,  §§  43,  43,  44,  and  45. 

t  Code,  §  832. 

§  Code,  §  833. 

1  Bish.  Crira.  Proc,  §  223  a. 

1  Matter  of  Clark,  9  Wend.,  212. 


12 


178 


CHAPTEK  V. 

§  166.  Surrender,  etc. 

The  governor's  warrant  need  not  state  facts  constituting 
the  crime."  Under  the  Constitution  of  the  United  States 
the  governor  of  a  State  has  no  jurisdiction  to  surrender  a 
fugitive  from  justice  of  another  State  without  a  demand 
from  the  executive  of  the  hitter.f 

A  governor  making  a  requisition  may  aj^point  an  agent 
to  receive  the  fugitive  ;  and  the  governor  on  whom  the 
requisition  is  made  may  issue  a  warrant,  authorizing  that 
agent  "to  take  and  receive  into  custody"  the  fugitive. 
Such  a  warrant  authorizes  the  agent  to  arrest.]: 

The  Executive  Department  of  the  State  of  New  York  has 
adopted  regulations  governing  applications  to  the  governor 
for  requisitions  on  the  governors  of  other  States  for  the 
surrender  of  fugitives  from  justice. § 

On  u-hat  Charge  to  he   Tried. 

In  cases  where  a  fugitive  is  arrested  on  a  demand  from 
a  foreign  State,  he  can  only,  according  to  the  better  view, 
be  tried  for  the  offense  for  which  the  demand  has  been 
made.  Under  the  Constitution  of  the  United  States, 
when  a  fugitive  is  transferred  from  State  to  State,  he  is 
open  in  the  second  State  to  any  prosecutions  that  may  be 
brought  against  him  in  such  State.il 

*  Matter  of  Clark,  9  Wend.,  212. 

t  Solomon's  case.  1  Abb.  Prac,  N.  S.,  347. 

X  1  Arch  Cr.  Pr.  &  PI.,  p.  125,  Pomeroy's  Notes. 

j5  Sj'nopsis  of  them  given  in  vol.  1,  Colby's  Grim.  Law,  p.  78. 

I  \\'harcoa"8  Cr.  L.  &,  Pr.,  §  '61,  8th  e  i. 


179 


CHAPTER  VI. 

§  167.   Commitment,  etc. 

The  commitment  should  state  the  facts  charged  or  found 
to  constitute  the  offense,  with  sufficient  certainty  to  enable 
the  Court  to  determine  what  particular  crime  is  charged.* 

The  Code  provides  : 

"  If,  from  the  examination,  it  appear  that  the  person 
charged  has  committed  the  crime  alleged,  the  magistrate, 
by  warrant  reciting  the  accusation,  must  commit  him  to 
the  proper  custody  in  his  county,  for  a  time  specified  in  the 
warrant,  which  the  magistrate  deems  reasonable,  to  enable 
the  arrest  of  the  fugitive  under  the  warrant  of  the 
executive  of  this  State,  on  the  requisition  of  the  executive 
authority  of  the  State  or  territory  in  which  he  committed 
the  offense,  unless  he  give  bail  *  ^r  %^  ^  qj, 
until  he  be  legally  discharged,  "t 

When  to  he  Discharged. 
"  The  person  arrested  must  be  discharged  from  custody 
or  bail,  unless  before  the  expiration  of  the  trial  designated 
in  the  warrant  or  undertaking,  he   be   arrested  under   the 
warrant  of  the  governor  of  the  State. "+ 

BetuDi  to  be  Made. 

"  The  magistrate  must  return  his  proceedings  to  the  next 
Court  of  Sessions  of  the  county,  which  must  thereupon 
inquire  into  the  cause  of  the  arrest  and  detention  of  the 
person  charged,  and  if  he  be  in  custody,  or  the  time  for  his 
arrest  have  not  elapsed,  it  may  discharge  him  from  deteu- 

*  Matter  of  Leland,  7  Abb.  Pr.,  N.  S.,  64. 

f§830. 
^§834. 


IbO 


tion,  or  may  order  his  undertaking  of  bail  to  be  canceled, 
or  continue  his  detention  for  a  longer  time,  or  readmit  him 
to  bail,  to  appear  and  surrender  himself  within  a  time 
specified  in  the  undertaking."* 


CHAPTEK   VII. 

§  168.  Bail. 

It  has  been  held  that  bail  cannot  be  taken  in  extradition 
process,  even  when  the  State  Constitution  provides  that  all 
prisoners  shall  be  bailable  by  sufficient  sureties. t  This 
does  not  apply  to  commitments  awaiting  executive  war- 
rants to  deliver  fugitives  over  to  other  States. 

The  Code  provides  that : 

"  A  judge  of  the  Supreme  Court  may  admit  the  person 
arrested  to  bail,  by  an  undertaking,  with  sufficient  sureties, 
and  in  such  sum  as  he  deems  proper,  for  his  appearance 
before  him  at  a  time  specified  in  the  undertaking,  and  for 
his  surrender,  to  be  arrested  upon  the  warrant  of  the  gov- 
ernor of  this  State."  :|: 

*  835. 

f  Wharton's  Cr.  PI.  &  Pr.,  Sth  ed.,  §  35  a. 

J  §  831 ;  see  R.  S.,  Part  iv.,  ch.  iL,  title  ii.,  §  44. 


181 


WRITS   OF    HABEAS   CORPUS,   CERTIORARI,    MAN- 
DAMUS, AND  PROHIBITION. 


Chapter    I. — General  Remarks. 

11. — Habeas  Corpus. 
III. — Certiorari. 
IV. — Mandamus. 

V.  —  Prohibition. 


CHAPTER  I. 
§  169.  General  Remarks. 
The  consideration  of  the  proceedings  which  have  engaged 
our  attention  would  be  incomplete  and  unsatisfactory  with- 
out a  reference  to  the  remedial  steps  that  can  be  taken  to 
insure  a  proper  administration  of  justice.  The  writs  of 
habeas  corpus  and  certiorari  furnish  the  usual  means  for 
reviewing  any  illegal  acts  committed.  The  writs  of  man- 
damus and  prohibition  may  also  be  invoked  to  meet  pecu- 
liar conditions,  when  they  will  be  the  only  appropriate 
process.  The  office  of  these  several  writs  and  the  prac- 
tice *  and  law  concerning  them  have  been  treated  of  so  fully 
in  other  workst  that  only  their  salient  features,  bearing  on 
their  utility  respecting  criminal  arrests  and  examinations, 
will  be  attempted  to  be  presented. 

*  Forms  of  writs  of  habeas  corpus  and  certiorari,  of  the  allowance  thereof, 
aaid  of  the  return  thereto,  1  Park  Cr.  L.,  324  ;    see  also  Revised  Statutes. 

t  Crary's  Special  Proceedings  ;  Wood  on  Mandamus ;  Hurd  on  Habeaa 
Corpus;  Bacon's  Abridgement ;  ("hitty's  Criminal  I^aw ;  Colby's  Criminal 
Law;  Waite's  Practice  ;  Arch.'s  Cr.  Pr.  and  PI.  ;  Wharton's  Cr.  Law,  and 
Bishop's  Crim.  Proc.  are  prominent  works  which  may  be  consulted  in  con- 
nection with  the  statutory  provisions. 


182 


CHAPTEE   II. 

§  170.  Habeas  Corpus. 

Tlie  writ  of  habeas  corpus  will  relieve  a  prisoner  from 
illegal  restraint,  whetlier  under  a  warrant  of  arrest  or 
unwarranted^  or  illegal  commitment  to  answer.  This  writ 
brings  up  the  prisoner,  and  those  papers  only  under  which 
the  jailer  or  police  officer  holds  his  prisoner,  such  as  the 
warrant  or  commitment,  final  or  for  examination.^ 

Formerly  the  depositions  could  only  be  brought  up  on  a 
writ  of  certiorari  and  in.  general  on  returns  to  writs  of 
habeas  corpus — beyond  what  appears  on  the  face  of  the 
warrant  of  arrest  or  commitment  will  not  be  looked  into  ;t 
but  courts  have  conceded  the  right  of  prisoners,  on  writs 
of  habeas  corpus,  when  in  custody  on  criminal  process 
before  indictment,  to  demand  that  the  original  depositions 
be  produced,  to  see  if  any  crime  is  in  fact  imputed  to  them, 
and  the  inquiry  will  by  no  means  be  confined  to  the  return. 
Facts  out  of  the  return  may  be  gone  into  to  ascertain 
whether  the  committing  magistrate  may  not  have  arrived  at 
an  illogical  conclusion  upon  the  evidence  given  before  him, 
whether  he  may  not  have  been  governed  by  malice,  or  have 
exceeded  his  jurisdiction,  and  whether  he  may  not  have 
mistaken  the  law,  or,  in  the  language  of  Lord  Ellenborough,:}: 
"to  ascertain  whether  the  commitment  was  not  palpably  and 
evidently  arbitrary,  unjust,  and  contrary  to  every  principle 
of  positive  law  or  rational  justice." 

Confined  within  these  limits,  the  inquiry  can  be  effectual 
for  the  protection  of  personal  liberty  against  oppression 
under  color  of  legal  process.§ 

*  14  X.  Y.,  575,  affirming  23  Barb.,  179,  188;  1   Duer,  709,  etc. 
t  3  Hill,  159;  2  Sandf.,  729. 
il4  East.,  1. 

§  People  V.  Martin,  1  Park  Cr.  R. ,  197  ;  People  v.  Tompkins,  1  Park.  Cr. 
R.,  22-4. 


183 

Courts  will  also  inquire  whether  anything  has  arisen 
since  the  commitment  for  putting  an  end  to  the  imprison- 
ment, or  whether  the  committing  magistrate  had  jurisdic- 
tion, even  though  the  necessary  jurisdictional  facts  are 
recited  in  the  commitment.* 

The  proceedings,  should  there  be  any  question  about  it, 
may,  in  any  event,  be  brought  up  by  the  writ  of  certiorari, 
as  ancillary  to  or  in  aid  of  the  habeas  corpus  writ. 

If  the  offense  be  not  bailable,  by  the  statute  in  this 
State,  the  writ  should  be  certiorari. t 

The  writ  of  habeas  corpus  does  not,  like  writs  of  error 
and  certiorari,  deal  with  errors  or  irregularities  which  ren- 
der a  proceeding  voidable  only,  but  with  those  radical 
defects  which  render  it  absolutely  void.:}; 

On  a  commitment  before  indictment,  the  whole  question 
of  guilt  or  innocence  is  open  for  examination  on  the 
return  to  the  writ  of  habeas  corpus,  and  the  inquiry  is  not 
necessarily  confined  to  an  examination  of  the  original  de- 
positions. Under  our  Revised  Statutes,  in  such  cases,  the 
proceedings  in  a  habeas  corpus  are  in  the  nature  of  an 
appeal  from  the  decision  of  the  committing  magistrate. 
After  indictment  it  is  otherwise,  because  there  are  no 
means  of  ascertaining  upon  what  it  was  found. § 

On  the  return  of  a  habeas  corpus,  by  our  Revised  Stat- 
utes, testimony  offered  with  the  return  may  be  supple- 
mented with  further  testimony  on  the  hearing  thereof.il 

Though  the  warrant  of  commitment  be  defective,  the 
Supreme  Court  will  not  discharge  the  prisoner  finally 
for  that  reason  ;  but  if  a  crime  be  made  out  upon  the 
depositions,  the  course  is  to  discharge  the  prisoner  i^ro 
forma,  but  remand  him  to  prison  upon  a  sj^ecial  rule  of 
court.  ■[ 

*Wood  on  Mandamus,  pp.  175-6;  5  HUl,  164;  3  R.  S.,  568,  sec.  42. 

f  Wood  on  Mandamus,  p.  186. 

X  Hurd  on  Habeas  Corpus,  p.  327,  et  seq. 

§  People  V.  Martin,  1  Park.  Crim.  R. ,  187. 

II  2  R.   S.,  p.  568,  §  43. 

T[  5  Cowen,  39  ;  see  3  East.,  157. 


184 


When  a  commitment  has  been  held  void  on  habeas 
corpus,  the  papers  are  funcfi  officio,  and  a  new  application 
must  be  made  if  a  new  commitment  is  sought.* 

Bailing  Prisoners. 

The  writ  of  habeas  corpus  is  extensively  used  for  the 
purpose  of  causing  a  prisoner  to  be  bailed,  when  bail  is 
refused  in  a  bailable  case,  or  excessive  bail  demanded.  As 
a  general  rule,  upon  such  applications  to  bail,  the  court 
requires  to  see  the  deposition ;  and  from  thence,  if  they  see 
just  cause,  without  regarding  the  regularity  or  irregularity 
of  the  commitment,  discharge  or  bail  the  prisoner. t 

Ees  Adjudicata. 

The  principle  of  res  adjudicata  is  held  not  to  apply  to 
the  Federal  courts,  which  are  not  governed  by  the  laws  and 
regulations  of  the  States  on  the  subject,  but  by  the  com- 
mon law  of  England  as  it  stood  at  the  adoption  of  the  Con- 
stitution, subject  to  such  alterations  as  Congress  may  see 
fit  to  prescribe. 

A  subject  in  confinement  has,  according  to  a  chief  jus- 
tice of  the  King's  Bench  at  Chambers,  a  right  to  call  upon 
every  court  or  magistrate  in  the  kingdom,  having  jurisdic- 
tion of  the  matter,  to  inquire  into  the  cause  of  his  being 
restrained  of  his  liberty.  + 

Even  in  the  States  where  the  principle  of  res  adj udicata 
respecting  habeas  corpus  is  held  to  apply,  the  decision  of 
the  court  of  another  State  or  of  a  court  acting  under  a  dif- 
ferent legislative  jurisdiction  would  not,  it  is  thought,  be 
considered  a  bar  to  such  proceedings.! 

It  is  now  settled  in  this  State  that  previous  adjudica- 
tions in  proceedings  on  habeas  corpus  are  no  answer  to  a 

*  People  V.  Walters,  15  Abb.  Pr.,  N.  S,,  430. 
f  1  Chitty's  Crim.  Law,  113. 

tin  re  Kaine,  3  Blatchf.  Cir.  Ct.  Rep.,  1  ;  Matter  of  William  Reynolda, 
6Park.  Crim.  Rep.,  pp.  322,  323. 
g6  Park.  Cr.  Rep.,  p.  323. 


185 

new  writ.  A  previous  decision  to  the  contrary*  relating  to 
a  controversy  respecting  the  custody  of  an  infant  child,  is 
distinguished  from  one  where  a  person  is  restrained  of  his 
liberty,  t 

Contempt  Proceedings. 

Neither  the  justice  nor  the  propriety  of  a  commitment 
for  a  contempt,  made  by  a  justice  according  to  law,  can  be 
inquired  into  upon  the  return  to  a  writ  of  habeas  corpus  or 
certiorari,  if  the  contempt  be  charged  in  the  commitment.:}: 

An  order  quashing  a  writ  of  habeas  corpus  can  only  be 
reviewed  upon  appeal,  a  writ  of  error  will  not  lie  in  such 
case.§ 

This  writ  is  usually  addressed  to  a  sheriff,  or  other 
officer  (it  issues  as  well  to  a  private  person),  and  com- 
mands him  to  have  the  body  of  the  person  named  at  a 
certain  time  and  place.  Though  it  is  of  ancient  English 
common  law  origin,  the  leading  idea  of  it — deliverance  by 
summary  legal  process  from  illegal  confinement — may  be 
traced  in  the  laws  of  other  countries  which  derived  none  of 
their  principles  of  jurisprudence,  or  rules  of  procedure, 
from  English  law.li 

*  Mercein  vs.  People,  25  Wend.,  64. 

t  People  vs.  Brady,  56  N.  Y.,  192. 

t  2  R.  S.,  567,  §  40. 

§  People  ex  rel.  Donovan  vs.  Conner,  64  N.  Y.,  481. 

I  Hurd  on  Habeas  Corpus,  p.   145  (1858). 


156 


CHAPTEE    III. 

§  171.  Certiorari. 
The  examination  of  tlie  magistrate  being  usually  of  sliort 
duration,  the  writ  of  certiorari  is  rarely  applied  for  pend- 
ing the  same,  but  it  is  customary  to  await  the  final  decision 
of  the  justice  and  then  to  bring  up  the  whole  examination 
for  review.  The  writ,  however,  may  be  applied  for  at  any 
stage  of  the  proceedings  by  some  one  in  interest,  showing 
that  some  person  is  aggrieved,  reciting  the  complaint.* 
The  writ  is  designed  to  prevent  only  a  substantial  injury.t 

The  granting  of  the  writ  rests  largely  in  the  discretion  of 
the  court  and  is  not  a  matter  of  strict  right.  It  is  to  be 
allowed  or  denied  according  to  the  justice  and  equity  of 
the  case.:]: 

The  English  courts  allow  the  issuing  of  the  writ  at  any 
time,  not  only  as  a  proceeding  in  error,  but  also  as  a  means 
of  supervising  and  guiding  the  courts  below,  at  any  period 
of  their  progress  in  an  action.  Consequently,  when  the 
writ  is  sustained,  the  court  above  will  commence  de  novo, 
having  no  regard  to  the  place  where  the  cause  left  off  in 
the  inferior  court.  § 

In  this  country,  on  the  other  hand,  a  certiorari  is  gener- 
ally employed  as  a  writ  of  error  strictly.  The  court  below 
is  allowed  to  proceed  in  the  case  under  consideration,  so 
far  as  its  judicial  authority  extends,  and  no  interference 
occurs  until  a  final  determination  has  been  reached,  and 
there  are  substantial  grounds  for  apprehending  unjust  and 
erroneous  adjudications.il 

*  Golden  vs.  Bolts,  12  Wend.,  234. 

f  People  vs.  Mayor,  5  Barb. ,  43. 

t65  Barb.,  435;  id.,  1;  52  N.  Y.,  445;  42  Cal.,  253. 

§Tidd'sPrac.,412. 

I  People>.  Betts,  55  N.  Y.,  GOO. 


1S7 

The  office  of  a  common  law  certiorari  is,  in  strictness, 
merely  to  bring  up  the  record  of  the  proceedings  of  an  in- 
ferior court  or  tribunal,  to  enable  the  court  of  review  to 
determine  whether  the  former  has  proceeded  within  its  juris- 
diction, and  not  to  correct  mere  errors  in  its  proceedings.* 

The  office  of  this  writ  has  been  enlarged  in  cases  where 
the  relator  has  no  other  available  remedy,  and  where  in- 
justice would  be  done  if  the  writ  were  not  permitted  to  do 
its  work  ;  in  which  case  the  power  and  authority  of  inferior 
tribunals  to  do  the  act  comj)lained  of,  and  all  questions  of 
regularity  of  their  proceedings,  that  is,  all  questions 
whether  the  inferior  tribunal  has  kept  within  the  boundaries 
prescribed  for  it  by  the  express  terms  of  the  statute  law, 
or  by  well-settled  principles  of  the  common  law,  will  be  in- 
quired into.t  Thus  errors  of  all  inferior  tribunals,  where 
they  have  exceeded  their  jurisdiction  or  proceeded  illegally, 
are  reached,  or  where  the  action  is  palpabh'  unjust  or  op- 
pressive, though  the  result  ensues  from  the  exercise  of 
discretion,  as  where  adjournment  is  refused,  and  a  decision 
made  without  giving  a  party  a  fair  hearing.:}; 

A  certiorari  does  not  lie  to  a  justice  where  he  does  not 
act  judicially. § 

It  is  directed  to  all  the  persons  whose  return  is  neces- 
sary to  enable  the  Court  to  determine  the  regularity  or  va- 
lidity of  the  proceedings  of  the  officer  or  tribunal  sought 
to  be  reviewed,  and  the  fact  that  the  jDerson  is  out  of  office 
is  no  objection.  If  he  has  the  custody  of  the  record,  the 
writ  lies  against  his  executor  or  administrator  even  after 
his  death,  when  the  record  is  in  their  custody. || 

"  If  there  is  a  full  and  adequate  remedy  by  appeal,  cer- 
tiorari does  not  lie,T[  or  if  there  is  an  ample  remedy  by 

*  People  ex  rel.  vs.  Commissioners  of  Highways,  etc.,  80  X.  Y.,  7"J. 

f  People  vs.  Assessors,  39  X.  Y.,  81 ;  People  vs.  Betts,  5")  X.  Y.,  (iOO. 

^  Wood  on  Mandamiis,  page  207. 

§  Pugsley  v.  Anderson,  3  ^Vend.,  408;  Pearsal  v.  Commissioners  of  Xoith 
Hempstead,  17  ibid.,  15  ;  People  v.  \Valters,  08  X.  Y.,  403. 

I  Wood  on  Mandamus,  pp.  200,  207;  05  Barb.,  176;  24  Mich.,  182. 

^46  Ga. ,  41  ;  8  Xev.  84  ;  Saratoga  and  Washington  R.  K.  Co.  v.  McCoy, 
51  How.  Pr.,  378. 


188 

writ  of  error  ;*  but  the  mere  fact  that  an  appeal  lies  does 
not  necessarily  deprive  a  party  of  the  remedy.  If  an  appeal 
has  been  unlawfully  denied,  or  if  the  party  by  fraud,  acci- 
dent or  mistake  has  been  deprived  of  his  appeal,  certiorari 
is  the  proper  remedy.t 

The  power  of  the  judge  or  other  officer  issuing  writs  of 
habeas  corpus  and  certiorari  under  the  statutes  of  New  York 
is  defined  by  such  statute  to  be  either  to  remand  to  custody 
the  person  alleged  to  be  detained,  or  to  discharge  such 
person,  or  in  proper  cases  to  let  him  to  bail. 

No  power  exists  in  him  to  command  an  inferior  tribunal 
before  which  a  proceeding  is  pending  at  once  to  fully  com- 
mit the  petitioner  for  such  writs  for  trial  with  or  without 
bail,  or  to  fully  discharge  him.  To  concede  such  power  to 
command  an  inferior  tribunal  having  jurisdiction  before  it, 
would  be  to  establish  a  dangerous  precedent,  even  if  it 
appeared  that  the  inferior  tribunal  was  exceeding  its 
authority  in  the  mode  of  conducting  the  proceedings  before 
ii  The  only  power  to  interfere  in  such  cases  would  be  by 
the  mandamus  of  a  superior  court,  or  possibly  by  that  form  of 
a  certiorari  which  would  bring  up  for  review  to  a  court 
having  jurisdiction  for  that  purpose  the  alleged  illegal 
assumption  of  power  on  the  part  of  the  inferior  tribunal. 

The  order  to  be  made  after  the  hearing  on  the  return  to 
writs  of  habeas  corpus  and  certiorari  cannot,  under  the 
statutes,  be  of  the  nature  of  a  writ  of  mandamus  to  the 
inferior  tribunal ;  and  no  authority  to  enforce  such  an  order 
exists.  If,  in  obedience  to  an  order  to  the  examining  magis- 
trate either  to  fully  commit  the  prisoner  for  trial,  with  or 
without  bail,  or  fully  discharge  him,  he  accepts  bail  for 
trial,  and  such  order  is  reversed,  on  certiorari,  the  effect  of 
such  reversal  will  not  be  to  reinstate  the  proceedings  in 
the  officer  taking  bail,  whatever  might  have  been  its  effect  if 

*1  Ired.,  N.  C,  408. 

t  Wood  on  Mandamus,  pp.  207,  208  ;  3  Murph.,  N.  C,  100  ;  3  Jones,  N. 
C,  195;  T.  U.  P.  Charlt.,  Ga.,  38;  1  Taylor,  N.  C,  15  ;  4  Greene,  Iowa,  94. 


189 

he  had  refused  to  let  the  defendant  to  bail  and  persisted  in 
such  refusal.* 

Besides  the  common  law  remedy  of  certiorari,  provision 
is  made  by  statute  in  most  of  the  States  for  remedies  in 
addition  to  the  common  law  causes  for  which  it  will  issue. 

The  return  to  the  common  law  writ  of  certiorari  is  conclu- 
sive.t  It  must  be  taken  as  true  ;  if  false  the  remedy  is  by 
action.^ 

The  service  of  a  writ  operates  as  a  stay,  unless  the  order 
or  judgment  has  begun  to  be  executed.^ 

*  People  ex  rel.  Phelps  vs.  Donohue.  14  Hun.,  p.  133. 

t6  Hun.,  625;  73  N.  Y.,  437. 

J  Wood  on  Mandamus,  p.  202. 

§Patchen  v.  Mayor,  etc.,  lo  Wend.,  604  ;  Conover  s  Case,  o  Abb.  Pr.,  182. 


190 


CHAPTER  IV. 

§  172.   Mandamus. 

Sliould  the  relator  seek  to  compel  tlie  performance  of  a 
ministerial  duty,  or  any  act  not  of  a  judicial  character,  the 
appropriate  writ  will  be  mandamus.* 

It  will  not  lie  for  the  correction  of  judicial  errors.  The 
inferior  court  may  be  required  to  proceed  to  judgment,  but 
what  particular  judgment  shall  b-^  rendered  cannot  be  dic- 
tated. "  Ministerial  officers  and  corporations  may  be  re- 
quired to  act  in  a  particular  manner,  or  even  to  reverse 
what  they  have  already  done.  If  a  judicial  officer  does 
that  which  he  has  no  power  to  do,  a  mandamus  will  direct 
what  should  be  done,  but  not  control  the  manner  of  exer- 
cisino-  a  judicial  act.f  It  will  not  lie  to  control  the  action  of 
an  inferior  court  in  a  matter  within  its  discretion.];  Nor  if 
the  discretion  is  not  and  cannot  be  governed  by  any  fixed 
principles  or  rules.  § 

When  a  magistrate  refused  to  examine  a  prisoner  who 
offered  himself  in  an  examination  required  by  statute,  a 
writ  of  habeas  corpus  was  refused,  and  it  was  stated  that 
the  only  effectual  remedy  in  such  cases  would  seem  to  be  a 
mandamus  commanding  the  justice  to  proceed  in  the 
matter.  II 

In  general  a  mandamus  will  not  be  granted  if  the  party 
has  another  specific  legal  remedy. IT 

♦People  V.  County  Judge  of  Clinton,  13  How.  Pr.,  277  ;  People  v.  Shea, 
7  Hun.,  303. 

f  People  V.  Shea,  7  Hun..  303. 

X2  Brightley's  Dig.,  p.  2584,  §  33. 

§  People  V.  Superior  Court,  5  Wend.,  p. 114. 

II  In  re  Haeley,  22  Vt..  364. 

1  People  V.  Stevens.  5  Hill,  616  ;  People  v.  Wood,  2  Abb.  Pr.,  90. 


191 


CHAPTER  V. 

§  173.  Prohibifion. 

This  writ  is  rarely  resorted  to,  as  it  has  no  utility  but  in 
extraordinary  cases. 

It  is  the  name  of  a  writ  issued  by  a  superior  cou^-t  di- 
rected to  the  judge  and  parties  of  a  suit  in  an  inferior 
court,  commanding  them  to  cease  from  the  prosecution  of 
the  same,  upon  a  suggestion  that  the  cause  originally,  or 
some  collateral  matter  arising  therein,  does  not  belong  to 
that  jurisdiction,  but  to  the  cognizance  of  some  other 
court.* 

The  writ  of  prohibition  mav  also  be  issued  when,  havincr 
jurisdiction,  the  court  has  attempted  to  23roceed  by  rules 
differing  from  those  which  ought  to  be  observed,  or  when 
by  the  exercise  of  its  jurisdiction,  the  inferior  court  would 
defeat  a  legal  right. f 

It  does  not  lie  to  a  ministerial  officer  to  stay  execution 
of  process  in  his  hands,  nor  to  prohibit  the  exercise  of 
ministerial  power  on  the  part  of  a  judicial  officer,t  but 
all  acts  based  upon  a  decision  judicial  in  its  nature  and  af- 
fecting either  a  public  or  private  right  are  judicial  acts 
and  are  reached  by  the  writ.  § 

De  facto  officers  cannot  be  restrained  from  acting  pend- 
ing proceedings  to  determine  their  title.  || 

* 2  vol.,  Bouvier's  Law  Diet.,  p.  384,  cases  there  cited. 

t  lb. 

X  Wood  on  Mandamus,  pp.  141  and  142. 

§  lb.  145. 

5  lb.  147. 


I  isr  ID  IE  ix:. 


PAGE. 

Intkoduction.  -  Arrest  without  process  by  officer  X 

Private  person X 

Cases,  three  classes  before  magistrate IX 

Commitment  of  offenders IX 

Examination,  what  necessary  to  understand XI 

Felonies IX 

Grand  Jury IX 

Hearing,  main XI 

Preliminary  to  trial XI 

Judicial  system  a  growth X 

Study  of X 

Misdemeanors IX 

Intoxication IX 

Bastardy IX 

Disorderly  conduct IX 

Persons IX 

Ordinances,  corporation IX 

Sanitary IX 

"Vagrancy IX 

N.  Y.  statutes X 

Code  of  criminal  procedure X 

Printing,  art  of X 

Summary  convictions IX 

Superstition X 


Abduction,  for  prostitution 

Accessories,  proceedings  against,  where 

Accomplices,  uncorroborated  statement  of 

Code 

Accusation  (see  Complaint),  reciting  in  warrant. 

In  commitment. 

Adjournment  pending  examination 

Aflfirmation  (see  Oath). 

13 


SECTION. 

PAGE. 

11 

14 

16 

24 

11 

14 

40 

56 

42 

61 

149 

163 

79 

90-3 

194 


SECTION.  PAGE. 

Appeal,  ancient  (private  person  against  another). .  5  3-5 

Arraignment  of  prisoner  (see  Prisoner) 55  70-1 

Arrest  (see  Warrant)   47-58  65-72 

Outlawry 47  65-6 

Eoman  law 48  66 

Theory  of  the 49  66 

What  is  an 50  66-7 

Notice  of  arrest  essential   50  67 

Officer,  powers  and  duty  of 51-3  67-9 

Without  unnecessary  violence 53  68 

For  larceny,  taking  possession  of  goods .  .  53  69 

Code 53  69 

For  misdemeanor,  not  on  Sunday  or  by 

night,  unless 54  69-70 

For  felony,  at  any  time 54  70 

Where  to  arraign  prisoner 55  70 

Detention  until  arraigned 5B  69 

Manner  of,  not  inquired  into 57  71-2 

In  going  to  or  returning  from  court 58  72 

Assault,  conviction  for,  no  bar  to  prosecution  for 

murder 36  47 

Authority,  central  and  local 19  27 

Bail 105-45  135-60 

Acceptance  of,  ends  jurisdiction 140  156 

What  is 105  135-6 

Purpose  of 106  137 

In  what  cases 107-8  138-9 

Enlargement  of  bailing  power 107  138-9 

Code 108  139-40 

Amount  of 109-10  141 

Elements  to  be  considered   109  141 

Excessive  bail.    110  141 

Examination,  is  it  necessary  before  bailing  ?. .  135  155 

Means  proper 141  157 

Power  to  take,  application,  etc _. .  111-24  142-7 

General  principles Ill  142 

Ancient  justices  of  the  peace 112  143 

U.  S.  offenses  against 113  143-4 

The  several  states 114  144 

Code 115  144-5 

When  committing  magistrate  has  no  power  116  145 

How  long  he  has  power 117  145 

Notice  of  application  to  district  attorney. .  .  118  145-6 
Magistrate   or  court  elsewhere  may  require 

notice 119  146 

Order  or  certificate  granting  or  denying. . . .  120  146-7 


rj5 


New  application,  etc 

Penalties  for  illegal  applications 

Certain  powers  not  limited 

Whose  decision  final 

Sureties 

Qualifications  of 

Justification 

Examination  of 

Order  thereon 

Securing  themselves 

New 

Bond 

Form  of 

Discharge  on  taking  bail,  form  of 

Certificate  on 

Liability  of 

Officer  bailing,  duties  and  liabilities  of 

Release  on,  at  any  time. 

Tender,  prisoner  must 

Unlawful 

Ministerial  or  judicial  act 

Deposit,  in  lieu  of 

-^ ,  Surrender 

Bench  warrant  (see  Warrant). 

Bigamy,  prosecution  for,  where 

Binding  over  (see  Holding  to  answer  and  Probable 

cause). 
Burglary  in  one  county  and   property   taken    into 

another 

Commitment 

Temporary 

Final 

Nature  of  offense  to  appear 

Authority  to  commit . . 

How  directed 

Seal 

Code 

Special  sessions  outside  of  New  York 

county 

Complainant 

Deficient  understanding  of 

Infamous  person  as 

Husband  and  wife  as 

Liability  of 

Name,    age,   residence   and  occupa- 
tion of,   necessary 


SECTION. 

PAGE. 

121 

147 

122 

147 

123 

147 

124 

147 

125-9 

148-9 

125 

148 

126 

148 

127-8 

149 

129 

149 

137 

156 

142 

157 

130-1 

150-3 

131 

. 152-3 

132 

153 

133 

154 

134 

154 

135-41 

155-7 

138 

156 

136 

156 

139 

156 

143 

157-8 

144 

158-9 

145 

159-60 

16 


16 

146-53 

146-8 

149-53 

149 

150 

151 

152 

153 

153 

9-12 

10 

10 
10 
12 

35 


21 


22 

161-7 

161-2 

163-7 

163 

164 

164-5 

165 

165-7 

166-7 

10-16 

12 

12 

13 

14-16 

45 


196 


Preliminary  examination  of,  must  be 

under  oath 29  35 

When  corroborative   proof   is   neces- 
sary   

Abduction  for  prostitution 

Accomplices 

Perjury  or  subornation  of 

Seduction  under  promise  of  mar- 
riage  

Treason 

Who  is 

Who  may  be 

Witnesses  for 

Complaint  (see  Prosecution)    inferior  districts 

Lodging  the 

Made   to  magistrate,  when   process  to 

arrest  is  sought,  where 

Must  be  recited  in  warrant,  when 

Oral 

Need  accuse   no   paiticular  person    by 

name 

Particular  cases 

N.    Y.    State 

Duelling  and  prize  flighting 

Bigmay,  polygamy 

Certain  larcenies ... 

Receiver  of  stolen  property 

Certain  burglaries  and  robberies. .  . 
Wounds  in  one  county  and  death  in 

another 16  23 

Crimes  committed   partly    in   one 
county  and  partly  in  another. 

Offenses  on  board  vessels,  etc 

Crimes  committed  on  railway  trains 

Nuisances 

Offenses  near  boundary  of  a  county 

Accessories 

Libel 

When  a  second  prosecution  is  barred 
Proceedings  on  (see  Examination  before 

warrant) . 
Separate  and   distinct    from  examina- 
tion unnecessary 

Where  to  be  made 

Common  law 

Constitution  of  the  U.  S 


11 

13-14 

11 

14 

11 

14 

11 

13 

11 

13-14 

11 

14 

9 

10-11 

10 

11-13 

30 

38-40 

17 

25 

1-26 

1-33 

13-17 

17-25 

42 

61 

25 

32-3 

28 

35 

16 

19-25 

16 

21 

16 

21 

16 

21 

16 

21-2 

16 

22 

16 

2Z 

16 

23 

16 

23 

16 

23 

16 

23 

16 

24 

16 

24 

16 

24 

16 

25 

33 

43 

13-17 

17-25 

13 

17-8 

14 

18 

197 


SECTION.  PAGE. 

The  doctrine  in  the  states 15  18-9 

N.  Y.  state 15  19 

Written 2G,  34         33,43,44 

Certiorari,  writ  of,  purpose  of 171  186-9 

English  practice 171  186 

Enlarged  in  certain  cases 171  187 

Not  granted  if  remedy  exists  by  appeal 

or  error 171  187-8 

Not,  when  justice   does   not  act  judi- 
cially   171  187 

Substantial  injury  only  prevented   ....  171  186 

This  country,  as  a  writ  of  error 171  186 

To  whom  directed 171  187 

Children  as  witnesses 10  12 

■Composition,  system  of 4  8 

Compurgation  (see  Prosecutions),  trial  by 5  4 

Conditional  examinations 33  41-2 

Contempt  (see  Witnesses). 

Coroner's  inquisition,  proceedings  upon 85  103 

Corporation,  proceedings  against 95  115 

Corroborative  proof,  when  necessary 11  13-14 

Counsel  (see  Examination  after  arrest). 

Crime  (see  Fugitives  from  justice),   originally  a 

private  offense  only 3  8 

On  board  vessels,  etc 16  28 

On  railway  trains 16  23 

Partly  in  one  county  and  partly  in  another .  16  23 

Place  of  perpetration 37  49 

Statement  of,  before  magistrate 38  50 

'Verification  or  proof  of,  where 15  18 

Criminal   intent,    when  necessary    to   allege   and 

prove 39  53 

Custodian  of  stolen  goods  (see  Warrant). 

Defendant  (see  Prisoner. ) 

Deposit  in  lieu  of  bail  (see  Bail). 

Depositions  as  evidence  (see  Examination  after  arrest). 

Detention  of  prisoner  (see  Warrant) 53  69 

Districts,  inferior 17  26 

Duelling,  where  offenders  may  be  prosecuted 16  21 

Evidence  (see  Examination  after  arrest). 
Executive  officers,  withdrawal  of  judicial  powers 

from 18  26 

Examination  before  warrant 27-39  34-53 

Preliminary  and  incidental  questions.  27-34  34-44 
Distinguished  from  examination  after 

arrest 27  84-6 


198 


When    arrest   withovit  warrant,    no 

preliminary  examination 

Code 

Duty  of  the  magistrate  to  investigate 
The  complaint  need  accuse  no  par- 
ticular person  by  name 

Preliminarj'  inquiry  may  be  to  ascer- 
tain the  name  of  offender 

How  much  must  be  proved  by  examin- 
ation of  complainant 

Oath 

Complainant  and  witnesses  must  be 

under  oath   

Roman  law 

N.  Y.  state 

Form  of 

Penal  code  of  China 

Witnesses  for  complainant  (see  Sub- 
poena)  

Detention  of  witnesses — 

Common  law 

N.  Y.  state 

Code 

Constitution  N.  Y.  state 

Whether     examination     to     be     in 

writing 

Revised  statutes 

Code 

Complaint  separate  and  distinct  from 

examination  unnecessarj' 

Written  complaint 

What  to  be  elicited  on  the  examina- 
tion  

Parties 

Code 

Time 

Statiites  of  limitation 

Place 

Statement  of  the  offense   

Intent 

After  arrest 

History  of 

Original  practice 

Development  of 

Evidence  on  trial 

Code 


SECTION. 

PAGE. 

27 

34 

27 

35 

28 

35 

28 

35 

28 

35 

28 

35 

29 

35 

29 

35 

29 

35 

29 

36-7 

29 

37 

29 

37 

30 


38-40 


32 

41 

32 

42 

32 

42 

32 

42 

od 

"4^-3 

33 

42 

33 

42 

33 

43 

34 

43-4 

35-9 

45-53 

35 

45 

35 

45 

36 

45-9 

36 

47 

37 

49-50 

38 

50 

39 

53 

76-84 

81-100 

ih- 1 1 

81-6 

76 

81.3 

77 

83-6 

78 

87-9 

78 

88  note 

191) 


SECTION.  PAGE. 

Detention  of  prisoner  jjending 79  90-5 

Constitution  U.  S 79  90 

Bevised  statutes,  X.  Y 79  90 

Unreasonable  cominitment  void. .  .  79  91 

What  is  reasonable  time   79  91-2 

Pending  decision 79  92 

Offenses    against    general   govern- 
ment and  other  states 79  92 

Code 7'J  92-3 

N.  Y.   city 79  93 

Other  states 79  93 

Remand,  verbal  or  written 80  94 

Code 80  94 

N.  Y.  city 80  95 

Other  states   80  95 

Where  prisoner  to  be  detained..  . .  81-4  96-100 

General  remarks 81  96 

How  in  England 82  96-7 

N.  Y.  state 83  97 

N.  Y.  city 84  98-100 

Order  and  manner  of  proceeding  gen- 
erally   85-98  101-24 

Prosecution 85-8  101-7 

Order  of  proceeding 85  101-3 

Code 85  102-3 

Coroner's  inquisition 85  103 

^^'itne^•ses,  how  examined 83  104 

Prisoner  to  be  present 87  104-5 

With  counsel  if  desired 87  105-6 

How  deijositions  taken  down. .  .  88  106 

Code 88  106-7 

Defense 89-95  108-15 

Introductory  remarks 89  lOS-9 

Early  conceptions 90  109-10 

State's  evidence 90  110 

Revised  statutes,  etc 91  110 

When   defendant's    examination 

unnecessary 91  111 

Spirit    of     the    examination    of 

prisoner 02  111-13 

Irons  on  prisoner 93  113 

Prisoners  may  testify  (?) 94  113-14 

Code 95  114-115^ 

Copies  of  depositions 95  115 

Corporations,  proceedings  against  95  115 

Separation  of  witnesses 96  116-18 


200 


SECTION.  PAGE. 

Waiving  examination 97-8  119-24 

Code 98"  124 

Fees  (see  Witnesses). 

Feud,  opposition  to  the  law 3  23 

Fore-oath,  required  from  an  accuser 40  55 

Fugitive  from  justice 154-68  168-80 

General  doctrine 154-6  168-70 

Relation  U.  S.  to  foreign  powers 154  168-9 

States  to  foreign  powers 155  169 

States  to  U.  S.,   to  themselves   and 

territories 156  169-70 

Who  treated  as  fugitives 157-60  171-2 

Offense 157  171 

Fleeing  from  justice 158  171-2 

Where  to  he  found 159  172 

Code 160  172 

Arrest  on  requisition 161  173 

Anticipating  same 162  174-5 

Code 162  175 

Hearing  on 163-5  176-7 

How  much  to  be  shown 163  176 

Code 164  176-7 

Review  of  proceedings 165  177 

Surrender,  etc 166  178 

On  what  charge  tried,  commitment, 

etc 166-7  178-9 

When  discharged 167  179 

Return  to  be  made 167  179-80 

Bail 168  180 

Goods,  offense  of  stealing,  may  be   prosecuted  in 

any  county  where  carried 16  21 

Receiver  of  stolen 16  22 

Grand  jury,  origin  of,  in  England 0  6-8 

Habeas  corpus,  writ  of,  office  of 170  182-5 

What  papers  it  brings  up 170  182 

Extent  of  inquiry  in,  bail,  etc 170  182-4 

Has  nature  of  appeal,  under  N.  Y. 

revised   statutes 170  183 

Commitment  defective 170  183 

Void 170  184 

Res  adjudicaia 170  184-5 

Contempt  proceedings 170  185 

Holding  to  answer  (Probable  cause) 99-104  125-34 

The  term  probable  cause 99  125 

Roman    law 100  126 

German  conceptions  and  subsequent  pro- 
gress   101  126-8 


201 


SECTION.  PAGE. 

Present  views 102  129-30 

General  remarks 103  130-2 

The  code 104  130.4 

Order  for  commitment 104  133 

Transmission  of  papers 104  133-4 

Election  of  place  of  trial 104  134 

No  preliminary  examination  when 104  134 

Husband  and  wife  as  witnesses  (see  Witnesses) ...  10  13 

Indictment 6  5-8 

Issues  of  fact  Joined  upon,  where  tried.  15  19 
For  special  causes   the  supreme  court 

may  remove 15  19 

In  certain   larcenies,  may  be  found  in 

any  county 16  21 

Conviction    for     assault     no    bar    for 

murder 36  47 

For  crime  other  than  murder 36  48 

May  be  found  within  the  term  limited.  36  48 
When   found,  within  meaning  of   the 

statute  of  limitation 36  49 

Not  invalid   by   reason  of    irregulari- 
ties, etc 42  61 

Infamous  persons,  testimony  of 10  12 

Informant  (see  Complainant). 
Information  (see  Complaint). 

Inquisition,  coroner's 85  108 

Intent  (see  Criminal  intent). 

Jails,  etc 83  97 

Justice,  acts  judicially  (see  the  several  writs)  ....  40  56 

Acts  ministerially  (see  the  several  writs) .  46  64 

Jurisdictional  questions 23  29 

Larceny  committed  abroad  and  goods  brought 
into  this  State,  the  oifender  may  be 
indicted   in   any   county  into  which 

the  goods  are  carried 16  22 

Warrant  for,  valid,   despite  omission   to 

give  the  value  of  property 42  61 

Libel,    by  publication,  persons  residing  in  or  out 

of  state 16  24 

Limitation,  statute  of  (see  Exam,  before  warrant). 

Magistrate  (see  Complaint),  jurisdiction 17  25 

Neglect  of  duty 24  31 

To  investigate  criminal  accusations ...  28  35 

May  issue  subpcEuas 30  39 

Mandamus,  writ  of,  when  it  lies 172  190 

Reaches  ministerial  duties 172  190 


202 


SECTION. 

Cannot  control  judicial  act 172 

Nor  discretionary  acts 173 

Refusal  to  examine  prisoner 173 

Not   issued,  if  another   legal   remedy 

exists 1 73 

New  hearing 103 

New  York  City,    examination    and   detention  of 

prisoner  in 79 

Eemand,  verbal  or  written,  in.  .  80 
Where    prisoner     to     be     de- 
tained in .    .   84 

New  York  State,  where  to  submit  a  complaint  in.  15 

\V' ho  may  issue  warrants  in  ...  .  23 

Jails,   etc 83 

Nuisance,  on  or  near   the  boundary  lines  of   the 
counties    of    New     York,  Westchester    and 

Queens 16 

Outlawry  47 

Oath  (see  Examination  before  warrant). 

Offenses  (see  Crime)  on  board  vessels,  etc 16 

Near  boundary  of  a  county    16 

Against  the  United  States 21 

Committed  on  different  days 36 

Should  not  be  barred  by  statute  of   limi- 
tation    36 

Statement  of 38 

Officer  (see  Warrant)  must  serve  subpoena 30 

Powers  of 51-67 

Must  have  warrant  in  his  possession 53 

Ordinances,  city,  how  set  forth 38 

Ordeal,  open  to  the  prisoner 5 

Parties  (see  Examination  before  warrant),  ques- 
tions affecting 35 

Perjury,  charge  of 11 

Place  (see  Exam,  before  warrant),  designation  of.  37 

Practice  in  the  city  of  New  York,  etc 37 

Prohibition,  writ  of 1 73 

When  inferior  court  has  no  jurisdic- 
tion   173 

Or  attempts  to  proceed  wrongfully.  .  173 

Not  to  ministerial  officer  or  act.  ...  173 

May  restrain  judicial  acts 173 

De  facto  officers. 173 

Prosecutions,  origin  of  public 1-8 

Self-help 1 

Vengeance  and  feud 2 


PAGE. 
190 
190 
190 


130 

93 
95 

98-100 
19 
29 
97 


23-4 
65-6 

23 
24 

28 
46 

47 
50-1 
39 
67-77 
68 
52 


45 

13 

49-50 

49 

191 

191 
191 
191 
191 
191 
1-9 
1-3 
2,3 


203 


Crime,    originnlly   a   private    offense 

only 

Composition  of  crimes 

Appeals 

Compurgation 

Ordeal   

Wager  of  battle 

Indictment 

Roman  law 

Colonial  law 

When  conviction  or  acquittal  is  bar 

to  second 

Prisoner  (see  Examination  after  arrest). 
Probable  cause  (see  Holding  to  answer  and   Bind- 
ing over). 

Property  stolen 

Taken  under  search  warrant 

Polygamy,  where  prosecution 

Prize  fighting,  violation  of  the  law  against 

Proof,  burden  of,  on  the  prosecution,  when  was.  . 
Prisoner  (see  Exam,  after  arrest),  treatment  of  .  . 

Escaping,  may  be  retaken 

Arraignment  of 

Detention  of,  pending  examination 

To  be  present  at  examination 

With  counsel  if  desiied 

Spirit  of  the  examination  of 

Irons  on 

May  testify  (?) 

Prosecutor  (see  Complainant). 

Recognizance  (see  Bailj. 

Return  (see  Transmission  of  papers). 

Robbery  in  one  county  and  stolen  property  taken 

into  another 

Roman  law,    accusation  must   first  be    made   in 

writing  by  the 

No  arrest  until  sentence  pronounced. 

Search  warrant 

Defined  

Caution  in  issuing 

Upon  what  grounds 

Probable     cause,      supported     by 

oath,  etc 

Constitution  of  the  United  States. 

Ought  to  name  the  person  in  whose 

building  the  stolen  property  is 


SECTION. 

PAGE. 

3 

3 

4 

3 

5 

3-5 

5 

4-5 

5 

5 

5 

5 

6 

5-8 

7 

8-9 

8 

9 

1(5 


53 

69 

70 

78 

IG 

21 

16 

21 

13 

15 

53 

68-9 

53 

.       68 

55 

70 

79 

90-5 

87 

104-5 

87 

105-6 

93 

111-3 

93 

113 

94 

113-4 

16 

7 
48 
59-75 
59 
60 
61 

63 
62 

63 


23 

8 
66 
73-80 
73 
74 
74 

75 
75 


SECTIOlSr. 

PAGE. 

63 

75 

64 

76 

65 

76 

66 

77 

67 

77 

68 

77 

69 

77-8 

70 

78-9 

70 

79 

70 

79 

71 

79 

204 


Before  issuing,    magistrate    must 

examine  on  oath 

When  to  be  issued 

Form  of 

By  whom  served 

Powers  of  oificer 

When  may  be  executed  in  night  time 
When  to  be  executed  and  returned. 
Respecting     the     property     taken 

under 70  78 

Return  of,  and   inventory  of  pro- 
perty taken 

Transmission  of  papers 

Taking  of  goods  by  officer 

Taking  testimony  by  magistrate . 
Reduction  to  writing  of  testimony 

by  witnesses 71  79,  80 

Maliciously  procuring  search  war- 
rant, a  misdemeanor 

Peace  officer  exceeding  authority . . 
Custodian  of  goods  to  be  arrested. 
Persons  charged   with  felony  sup- 
posed to  have  dangerous  wea- 
pons, etc 

Self-help,  doctrine  of 

Seal,  warrant  sufficient  without  a 

On  commitment 

Seduction  under  promise  of  marriage,  complaint  of 

Special  sessions,  outside  of  New  York  city 

Statutory  offense,  should  be  described   with  clear- 
ness and  certainty 38  51-2 

Statutes  of  limitation  (see  Exam,  before  warrant). 

Subornation  of  perjury,  charge  of 

Subpoena,  form  of 

To  bring  books  and  papers,  form  of .  . . 

Disobedience  of 

By  whom  served 

How  served 

To  attend   out  of  the    county    where 

witness  resides,  must  be  indorsed . 

District  attorney   may  issue,  when  for 

people 

May  be  issued  by  magistrate  on  infor- 
mation   

When  necessary  to  send  into  a  foreign 
country,  sheriff  shall  serve  and 
make  return 30  40 


73 

80 

78 

80 

74 

80 

75 

80 

1 

1 

44 

63 

152 

165 

11 

13-4 

153 

166-7 

11 

13 

30 

38 

30 

38-9 

30 

39 

30 

39 

30 

39 

30 

40 

30 

40 

30 

39 

205 


Issued   by  a  magistrate,   shall    be   in- 
dorsed upon  the  book  thereof 

Inserting    names    in,    with   intent    to 

deceive,  is  a  misdemeanor 

Fees  of  witnesses 

Stolen  property  (see  Property  stolen). 

Sureties  (see  Bail). 

Time  (see  Exam,  before  warrant). 

Treason,  witnesses  necessary  to  obtain  a  warrant 

for 

Transmission  of  papers  (see  Holding  to  answer)  .  . 

Vengeance,  appendage  to  the  law 

Wager  of  battle,  trial  by 

Words,  the  use  of,  at  length 

Wounds  in  one  county  and  death  in  another 

Warrant  (see  Arrest) 

To  whom  to  apply  to  for 

Withdrawal  of  judicial  powers  from  ex- 
ecutive officers 

Central  and  local  authority 

Criminal,  in  England 

Offenses   against   the    U.    S. ,    by   whom 

issued 

N.  Y.  state 

Jurisdictional  questions 

Magistrate's  neglect  of  duty 

Caution  to  be  observed  in  applications  for 

When  to  be  issued 

Anglo-Saxon  laws 

In  Denmark    

Code 

Among  the  1-Jomans 

Should   not  be    issued    on    bare    sus- 
picion  •. 

N.  Y.  revised  statutes 

Policy  of  the  law 

Requisites  of  a 

Must  be  directed 

Common  law 

Code 

N.  Y.  revised  statutes 

Recite  the  accusation 

Common  law 

N.  Y.  revised  statutes 

Code 

In  case  of  larceny 


SECTION. 

PAGE. 

31 

41 

31 

41 

31 

41 

11 

14 

0,  183 

79,  134 

2 

3 

5 

5 

36 

46 

16 

22 

40-75 

54-80 

18-24 

26-31 

18 

26-7 

19 

27 

20 

27-8 

21 

28 

22 

29 

23 

29-30 

24 

31 

38 

51 

40 

54-8 

40 

55 

40 

55 

40 

56-7 

40 

56 

40 

56 

40 

57 

40 

58 

41-6 

59-64 

41 

59-00 

41 

59 

41 

60 

41 

60 

43 

60-1 

42 

60 

42 

61 

42 

61 

43 

61 

SECTION. 

PAGE. 

42 

16 

43 

61-3 

43 

61 

43 

63 

44 

63 

44 

63 

44 

63 

45 

63-4 

45  63 


206 


Apparent  and  merely  clerical  error 

Designation  in,  of  the  person  to  be  ar- 
rested  

In  England  until  1763 

Code 

Whether  to  l^ave  a  seat 

N.  Y.  revised  i-tatutes 

Code 

Other  features 

Should  be  dated  and  signed  by  magis- 
trate   

Should  direct  where  prisoner  is  to  be 
brought 

Form  of 

Justice  acts  ministerially 

Execution  of,  every  person  must  aid  officer 
in 

Persons  of  the  officer  in  executing 

Officers  exhibiting 

Officer  must  have  in  his  possession. . .  . 

Must  be  lawful  on  the  face 

"When  and  where  to  be  executed 

Code 

Indorsement  of 

Return  on  the 

Code 

Search  (see  Search  warrant). 

Bench 106  137 

Witnesses  (see  Subpoena),    deficient  understand- 
ing of  ... .    

Children,   age  of,  as 

Husband  and  wife  as 

Preliminary  examination  of 

For  complainant 

Summoned  and  refusing  to  attend  or  to 
answer 

Refusing  to  produce  papers  in  his  pos- 
session  

Fees  of 

Detention  of 

In  cases  of  felony  magistrate  shall  bind 
by  recognizance,  and  may  require 
surety 

Shall  not  be  unreasonably  detained.  . . 

Names,  ages,  addresses  and  occupations 

of,  necessary 35  45 


45 

64 

45 

64 

46 

64 

51 

67 

51 

67 

52 

67 

52 

68 

52 

68 

54 

69 

54 

69 

54 

70 

56 

71 

56 

71 

10 

12 

10 

12 

10 

13 

29 

35 

30 

38 

30  39 


30 

39 

31 

41 

32 

41 

32 

42 

32 

42 

207 


TT                     .       ^  SECTION.  PAGE. 

How  examined o^  ^  „ , 

Separation  of j^-g 

Writ  of  habeas  corpus   to  secure   testimony  of  a 

P'^iso^^'- 30  40 

Return  to,  by  jailer -j  ^^ 

Writs    (see  Habeas  Corpus,  Certiorari,    Man- 
damus, and  Prohibition). 


llflliiu'ri[.'^^'^^'^''^'^''-^l-'BH/.Ryur: 


LITY 


inJIiiJii 


AA    000  695  357 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


JUN  2  0  1994 

UCLA  lAVJ  LIBRARY 

OCT  01  2000 


315 


